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HomeMy WebLinkAboutGPA 89-1 Ahmanson (C/Z 89-1 ZOA 89-1) File 2 NOISE EMPACTS'JUIDY FOK-1 111E It* AUIATANSON COMMERCIAL]DEV.P]LOPMENT PLAN (GIIA 89-1,C/Z 89-1) SCH No.881.22603 Prepared for -7ity -,f P elm Desert 73-510 Fred Waring Drive Palen Desert, GA 9220 Prepqreel by TCTra Nova P1anniii1f,& M-s,arcbll Ine 27.5 N. T4';l Cielo, D-3 pa-1 m Springs, CA.9226' L Walker-C elatio Associates 265r. Townsgate Road, #112 Westlake'Jiflage, CA.91-361 Absift-act This noise impacL study has ])eon prepared in conjunction with !in Environmental Impact Report (FUH) prepared by the City of Palm Desert on the proposed Ahmanson ("onimercial Develupaient Plan. 'I'lie noose stu.dy utilized &.Ua zmd it)l­orrnRt10T1 from the 't-nJi "Ic ittipact report prepared by Linscott, Law & Greenspan on the subject development. proposal. r;kie EIR hwcS bevo prepared to address GIC PCtterltidl Jl7lptlCLS kissodat.Cd witi, a proposed General PIP11 0 0 - i­,andincrit (G.PA)i 'han-e of/7-onhig and associated Tegmiatory mc!,;,ms. The p-roposed projvct� consists of qpvati (7) sites encompassing 132± neres located prii-iiarily along the H;g,)way 111 corridor. Veldcular trarl"ic represcias the principal noise gc_newator analysed it, Lhi.,, report, Noise ;mI.-ietti fwvovitited with construction, stntlonary,oti-site? gonorators and 6n­44!�, vehielog '11-C Z"14;a analysed. No im-mitigatabl.e impacts were identilmd. NOISE IMPACT STUDY FOR THE AM ANSON COMMERCIAL DEVELOPMENT PLAN (GPA 89-1,C/Z 89-1) r SCH No.88122603 wr Prepared for r City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Prepared by Terra Nova Planning&Research, Inc. 275 N. El Cielo, D-3 Palm Springs, CA 92262 rrr rr Walker-Celano Associates Acoustical Engineers ar 2659 Townsgate Road, #112 Westlake Village, CA 91361 Abstract This noise impact study has been prepared in conjunction with an Environmental Impact Report (EIR) prepared by the City of Palm Desert on the proposed Ahmanson Commercial Development Plan. The noise study utilized data and information from the traffic impact report prepared by Linscott, Law & Greenspan on the subject development proposal. The EIR has been prepared to address the potential impacts associated with a proposed General Plan Amendment (GPA), Change of Zoning and associated regulatory actions. The proposed project consists of seven (7) sites encompassing 132± acres located primarily along the Highway 111 corridor. Vehicular traffic represents the principal noise generator analysed in this report. Noise impacts associated with construction, stationary on-site generators and on-site vehicles are also analysed. No un-mitigatable impacts were identified. w Ka Table of Contents Page No. rw List of Tables 2 List of Appendicies 2 wo I. INTRODUCTION AND PROJECT DESCRIPTION 3 M A. Introduction 3 B. Project Description 4 C. Scope of Research and Analysis 4 r. D. Location of Proposed Development 4 II. NOISE ENVIRONMENT AND IMPACT ANALYSIS 6 A. Introduction 6 B. Noise Monitoring Sites 6 C. Noise Measurement Procedures 7 D. Existing Traffic Noise Levels 8 III.NOISE IMPACTS AND MITIGATION MEASURES. 9 rr A. Introduction 9 B. Projected Cumulative and Project Traffic 10 C. Noise Impacts From Cumulative and Project Traffic 11 �. D. Potential Construction Related Noise 14 E. Potential On-Site Stationary Noise 14 F. Potential On-Site Vehicle Noise 14 IV.SUMMARY AND RECOMMENDATIONS 15 A. Introduction 15 B. Construction Noise Mitigation Measures 15 C. On-Site Stationary Noise Mitigation Measures 15 D. On-Site Traffic Noise Mitigation Measures 15 E. Off-Site Traffic Noise Mitigation 16 rrr F. Recommendations 16 List of Tables II-1 Summary of Measured Traffic Noise Levels 8 III-1 Existing And Cumulative Plus Project Traffic; Project CNEL Contribution 10 III-2 Existing Traffic Noise Impacts (1989 CNEL) 11 III-3 Cumulative Traffic Noise Impacts (2000 CNEL) 12 III-4 Cumulative Plus Project Traffic Noise Impacts (2000 CNEL) 13 rr 2 to aMr I. INTRODUCTION AND PROJECT DESCRIPTION A. Introduction Concern regarding the potential psychological and physiological impacts of noise pollution has increased significantly in recent years. Excessive noise levels are not only a potential annoyance but can constitute a significant health threat, resulting in temporary or permanent hearing loss and mental distress. The most common sound range is between 40 dB (very quiet) to 100 dB (very loud). Conversation at three feet is roughly at 60 dB, while loud motor noises which can cause discomfort equate to 110 dB. Due to the logarithmic nature of the noise scale, doubling the sound energy level of a noise source only increases the decibel rating by 6 dB. However, due to the nonlinearities in the mechanism of the human ear, a sound must be nearly 10 dB higher than another sound to be judged twice as loud. Since every increase in loudness by 10 dB doubles the loudness, a 100 dB sound will be 16 times louder than a 60 dB sound. Community noise impacts are commonly evaluated in the Community Noise Equivalent Level (CNEL) noise, index which reduces to a single number the combined effect of a daily noise exposure. The value computed by this method is the sum of the decibel values of the sound, with corrections for time of day, and averaged over 24 hours. Weighting factors of 3 and 10 are employed to account for increased sensitivity in the evening (7 pm to 10 pm) and nighttime (10 pm to 7 am) periods, respectively. r The most common noise generators affecting or being sourced at the subject properties are on- site and off-site traffic, construction activities, and stationary on-site sources such as air conditioning and refrigeration equipment. Most transportation noise is highly predictable if certain data concerning operating characteristics are available. Computer models and simulations are used to compute the noise environment along transportation routes based on + ++ vehicle operating characteristics. These predictions, provided by existing quantitative models, have been verified by sound measurements at strategic and sensitive receptor locations near the major transportation routes associated with the project. 3 w B. Project Description wo The Ahmanson Commercial Development Plan is a proposal to develop retail commercial uses on seven (7) sites. An additional two project sites are to be dedicated to open space preserve (55± acres) and roads and parkways (4± acres). The entire subject study area totals approximately 132 acres in the downtown commercial core/Highway 11 area of the City of Palm Desert. No specific development proposals have been submitted on the project at this writing. The development is envisioned as a mixed use commercial project, which would include banks and other financial institutions, professional office space, restaurants and ANN extensive retail development. Total gross square footage potential examined in the EIR and associated traffic impact report was approximately 846,700 square feet. C. Scope of Research and Analysis Terra Nova Planning & Research, Inc. and its consultant, Walker-Celano Associates, have been retained by the City of Palm Desert to conduct an independent noise impact analysis on the proposed development. Coordinating with City Planning staff, nine (9) noise monitoring sites were selected and are described below. In addition to monitoring existing traffic noise 104 and establishing characteristics of the noise environment, this study also calculates the traffic noise impacts associated with Year-2000 cumulative traffic noise and project related traffic noise likely to result from the proposed development. Existing and projected cumulative and ims project traffic was provided by Linscott, Law and Greenspan, Engineers. Consultation with the principal traffic engineer also provided important information for this report. The noise impact study also examines the potential for impacts associated with construction activities on the project sites, on-site traffic from customers and delivery trucks, and from on- site stationary sources such as air conditioning and refrigeration equipment. While the lack of development plans limits the scope of discussion with regard to these potential impacts, generic discussions and recommendations are made which will help to limit impacts from these potential noise sources. D. Location of Proposed Development As discussed above, seven (7) sites are proposed for commercial development over the next 10 years. The following describes the location of each project site, its boundaries and current status/use. w. 1. Project Site 1 is bounded by Highway 111 on the north, El Paseo on the east, Painters Path on the south and the Palm Valley Flood Control Channel on the west. The site rr encompasses approximately 8.77 acres and is currently vacant. Proposed uses include general retail commercial, financial institutions and quality restaurants. 2. & 3. Project Sites 2 & 3 are contiguous planning areas located southwest of Highway 111, northwest of the Palm Valley Flood Control Channel, east of Painters Path and south of Fred Waring Drive. These two sites encompass approximately 15.43 acres and are largely vacant, with the exception of one older commercial establishment. Proposed uses include retail commercial and restaurants. 4 r 4. Project Site 4 is bounded on the east by Painters Path, the Palm Valley Flood Control Channel on the south,the toe of the Santa Rosa Mountain foothills to the west and Project Site 5 (see below) on the north. The development portion of the site encompasses approximately 29.71 acres and is currently vacant. The proposed uses ar limited to general retail commercial. 6. Project Site 6 is bounded on the north by Fred Waring Drive, existing commercial r■ development on the east and south, and Town Center Drive on the west. The site encompasses approximately 8.47 acres and is currently vacant. The proposed use for this site is retail commercial. 7. Project Site 7 is located located in the commercial core area and is bounded on the north by El Paseo,by Larkspur on the east, San Pablo on the west and shadow Mountain on the iW south. The site encompasses approximately 10.66 acres and is currently developed with older residential units. The proposed use for this site is retail commercial. aw it wi w.r rrr wr ANN 5 r. II. EXISTING NOISE ENVIRONMENTAL AND MONITORING PROCEDURES �r A. Introduction In order to accurately determine the impacts of project traffic and other sources of noise on surrounding land uses, it is necessary to first characterize the noise environment. This can be best accomplished by conducting noise measurements at or in the vicinity of sensitive noise receptors. This information provides baseline information for accurately projecting future noise conditions as a consequence of development and increased vehicular traffic. The following discussion describes the noise monitoring sites selected for this study, the noise "r measurement procedures used, and existing traffic noise and how measured conditions compare to calculated (mathematically modeled) conditions. 1W B. Noise Monitoring Sites Terra Nova staff met with City Planning Department staff and jointly selected those locations rs which would best serve as noise monitoring sites for the proposed development. A total of nine sites were selected and were monitored and computer modeled at four separate times over two Aw days. These sites are as follows: Site 1 Highway 111 south of Fred Waring Drive, approximately 75 feet northeasterly of iho the highway centerline, adjacent to the northerly parking lot of the Travelers Inn Hotel. so Site 2 Highway 111 north of Bob Hope Drive and northwesterly of Ocotillo Drive, approximately 75 feet northeasterly of the highway centerline. go Site 3 Fred Waring Drive 75 feet north of the roadway centerline in the vacant lot located at the northeast corner of Waring and Town Center Drive. em Site 4 Painters Path west of El Paseo and 3 feet south of the southerly curb face, in front of the hedge row of residence at 1705. aw Site 5 El Paseo west of State Highway 74 on the front lawn of Fire Station #1, approximately 50 feet south of the centerline of El Paseo. we Site 6 Shadow Mountain Drive between San Pablo and Larkspur, approximately 50 feet south of the roadway centerline. Site 7 San Pablo Avenue between El Paseo and Shadow Mountain Dr., approximately 30 west of the roadway centerline on the front lawn of residence at 45407. 6 am as Site 8 El Paseo between San Pablo Ave and Larkspur Lane, approximately 50 feet north of the roadway centerline. as Site 9 Highway 111 east of Cook Street, approximately 75 feet north of the roadway centerline. im C. Noise Measurement Procedures 40 Measurements at the nine monitoring sites were made using a Larson-Davis Laboratories type 3100 1/3 octave integrating a real time analyser connected to a Toshiba 1100+ portable computer. Calibration of the system was checked using a Bruel & Kjaer type 4230 acoustic to calibrator (certification 6/89) for each series of measurements taken. Each sample taken was for a duration of 15 minutes. i" During all measurements, the microphone was fitted with a Bruel & Kjaer type UA 0237 wind screen, mounted on a stand at a height of 5 feet above the ground and "aimed" in the direction of the predominate noise source. Except at very high frequencies, the directional so characteristics of the microphone used in these measurements are essentially omnidirectional. WN For each of the measurements, the analyser computed the Leq 1/3 octave spectrum and overall A-weighted and Un-weighted noise levels. Concurrently, the analyser transferred and of instantaneously A-weighted noise levels at a rate of 10 samples per second to the portable computer for storage on magnetic disk. At the end of the sample period, the Leq 1/3 octave spectrum, A-weighted and Un-weighted overall noise levels and a date/time stamp were read OW into the computer and stored on magnetic disk. From these disk records, graphic level verses time recordings and statistical analyses of the measured samples were produced in the laboratory. Measurement results are summarized below. w D. Existing Traffic Noise Levels Existing noise environment characteristics and noise levels at the various monitoring sites have been tabulated. The graphic level recordings, cumulative statistical distribution plots and 1/3 octave Leq spectra are presented in the study appendix. A summary of the data for the various measurement sites and times of day are presented in Table II-1, below. iw �r. 7 Table II-1: Summary of Measured Traffic Noise Levels +w Background Ambient Intrusive Site Date Time L90 Leq L1 W 1 10/7 0027-0042 47.8 60.0 70.4 1 10/7 0836-0851 50.1 65.2 73.8 1 10/6 1404-1419 52.3 66.7 74.1 1 10/7 1643-1658 51.8 65.7 73.1 am 2 10/7 0906-0921 50.8 65.5 74.8 2 10/6 1457-1512 52.6 65.3 72.2 fiw 2 10/7 1711-1726 48.9 64.1 71.5 2 10/6 2037-2052 49.6 63.4 71.3 wo 3 10/7 0936-0951 48.1 61.7 71.6 3 10/6 1540-1555 49.3 63.8 73.2 3 10/7 1739-1754 48.3 60.9 70.3 3 10/6 2106-2121 47.3 59.1 69.5 w 4 10/7 1002-1017 45.9 54.3 67.4 4 10/6 1613-1628 50.3 58.2 70.4 ,, 4 10/7 1805-1820 50.4 57.0 68.6 4 10/6 2134-2149 47.6 52.7 63.9 low 5 10/7 1029-1044 50.3 61.1 69.1 5 10/7 1426-1441 49.7 60.4 68.0 5 10/6 1650-1705 52.1 62.7 70.9 5 10/6 2202-2217 48.6 57.7 67.3 rrr 6 10/7 1122-1137 37.2 54.6 66.2 6 10/7 1332-1347 40.2 52.4 64.3 6 10/6 1721-1736 38.8 55.5 66.5 6 10/6 2256-2311 39.4 50.0 64.1 7 10/7 1055-1110 42.0 53.9 66.5 7 10/7 1354-1409 40.0 55.8 68.7 7 10/6 1756-1811 41.3 55.6 68.6 7 10/6 2231-2246 45.7 51.9 64.5 8 10/7 1255-1310 50.0 61.3 69.5 8 10/7 1617-1632 50.6 60.5 68.6 8 10/6 1832-1847 50.6 60.3 70.0 8 10/6 2320-2335 47.2 56.9 69.2 9 10/7 1223-1238, 54.3 67.7 75.0 am 9 10/7 1507-1522 54.8 67.3 74.9 9 10/6 1910-1925 57.2 67.0 73.9 9 10/6 2355-0010 47.2 64.5 72.8 ®w �.. 8 we trr arc III. NOISE IMPACTS AND MITIGATION MEASURES A. Introduction rrr This section of the noise impact study summarizes the traffic conditions occurring at the nine as (9) monitoring sites and presents projected cumulative and project traffic for the Year-2000. The proposed project's projected contribution to the noise environment is also presented in the table accompanying this discussion. The methods used to calculate traffic noise impacts for No Year-2000 are then discussed. B. Projected Cumulative and Project Traffic ow Information on existing traffic conditions, project traffic generation and cumulative (ambient) traffic increases through the Year-2000 were taken from the traffic study prepared by +rr Linscott, Law & Greenspanl for the project EIR. Most of the existing traffic conditions cited in the study are derived from 24-hour machine counts; few are estimates. Counts for Highway 111 at Cook Street were provided by CalTrans from 1988 machine counts. All existing traffic is represented as "peak season". Cumulative traffic was established based upon remaining available and developable lands and approved projects. Based upon a knowledge of land use patterns, the traffic engineers applied trip generation rates from several sources including the Institute of Transportation Engineers publication Trip Generation. 4th Edition. Project traffic was calculated in a 'w similar manner and was distributed on the local street system. Since the preparation of the traffic study, there has been a substantial reduction in the total iw square footage of retail commercial space to be developed with this project. This reduction in square footage and corresponding reduction in project trips will result in the following noise r.. calculations being conservative. ar. l Traffic Impact Report-Ahmanson Commercial Development Company ,Prepared by Linscott, Law&Greenspan.June,1989. �r. 9 •o Table III-1: Existing and Cumulative Plus Project Traffic err On Critical Roadways For Year 2000 Locations Correspond To Noise Monitoring Sites Roadway Link Existing Cumulativel Cumulative Project Impact CNEL (dB) Monitoring Site ADT ADT Plus Project ADT / (%) Contribution ADT Increase From Project Highway 111 west of Bob Hope 49,500 65,630 74,220 8,590 (13%) 0.53 db rr Highway 111 south of F. Waring 41,417 55,950 69,850 13,900 (24.8%) 0.96 db Highway 111 at Cook Street2 32,000 41,600 48,280 6,680 (16%) 0.65 db Fred Waring at Town Center 17,960 23,350 27,930 4,580 (19.6%) 0.78 db Painters Path west of El Paseo3 980 1,127 3,517 2,390 (212%) 4.94 db rr El Paseo west of Hwy 74 21,960 28,820 33,430 4,610 (16%) 0.64 db rr El Paseo east of San Pablo4 8,160 15,160 17,410 2,250 (14.8%) 0.60 db �trr San Pablo north of Shadow Mt. 502 600 3,970 3,370 (561%) 8.21 db bw Shadow Mt. east of San Pablo 2,107 2,630 3,000 370 (14%) 0.57 db 1 Applies "peak season" traffic counts for each road segment throughout. 2 Existing counts based on CalTrans 1988 "peak month" ADT at milepost 37.66 on Hwy 111. 3 Assumes termination of Painters Path at Palm Valley channel and no channel bridging. 4 Existing traffic at this segment has been estimated. Note: Traffic mix assumes 2% trucks. Cumulative year 2000 projections based upon 30% increase on arterials and 15% increase on collectors and local streets over current conditions. wr tow ... 10 C. Noise Impacts From Existing, Cumulative And Project Traffic Traffic noise contour locations were calculated for each of the roadway segments at the measurement locations (monitoring sites) used to establish existing noise and traffic flow conditions. These calculations predicted Year-2000 traffic both with and without the proposed project traffic. The noise contours for noise generated by existing traffic conditions was first projected. Subsequently, the model, described below, calculated the contour locations for Year-2000 traffic projections with, and without the proposed project traffic. Results of these analyses are tabulated below. w� The model used to calculate projected noise contours was based upon the standard Federal rr� Highway Administration FHWA-RD77-108 procedure modified to incorporate a more realistic model for ground and atmospheric attenuation, and incorporating the CALVENO2 reference noise emission levels. irr Table III-2 Existing Traffic Noise Impacts 1989 CNEL CNEL A D T MPH 45 50 55 60 65 70 75 Highway 111 w/o Bob Hope 49500 45 3063 1977 1203 656 302 126 55 s/o Fred Waring 41417 45 2870 1840 1105 587 266 112 56 at Cook Street 32000 55 3167 2050 1257 692 324 135 59 Fred Waring at Town Center 17960 40 1848 1112 592 268 112 53 Painters Path r w/o El Paseo 980 35 310 127 50 II Paseo w/o Highway 74 21960 35 1748 1040 543 241 100 48 e/o San Pablo 8160 25 770 370 156 67 San Pablo n/o Shadow Mt. 502 25 103 41 Shadow Mtn. e/o San Pablo 2107 35 528 233 93 37 2 California Vehicle Noise Emission Level .Document FHWA/CA/TL-84-13. California Department of Transportation,Division of Engineering Services,Office of Transportation Laboratories.August, 1984. Table III-3 Cumulative Traffic Noise Impacts Year-2000 CNEL +wr (Without the Project) r• CNEL AD T MPH 45 50 55 60 65 70 75 ift Highway 111 w/o Bob Hope 65630 45 3392 2209 1368 770 371 156 66 s/o Fred Waring 55950 45 3205 2075 1275 704 332 140 65 at Cook Street 41600 55 3482 2274 1415 804 390 165 70 Fred Waring at Town Center 23350 40 2054 1259 694 325 136 61 Painters Path w/o El Paseo 1127 35 344 142 56 II Paseo w/o Highway 74 28820 35 1950 1187 643 296 123 55 e/o San Pablo 15160 25 1066 560 250 104 49 San Pablo WW n/o Shadow Mt. 600 25 119 47 Shadow Mtn, e/o San Pablo 2630 35 608 275 111 44 �r r�r ti 12 or Table III-4 am Cumulative Traffic Noise Impacts Year-2000 CNEL (With the Project) �r CNEL A D T MPH 45 50 55 60 65 70 75 Highway 111 w/o Bob Hope 74220 45 3457 2316 1446 825 404 172 72 s/o Fred Waring 69850 45 3470 2263 1408 798 388 165 74 at Cook Street 48280 55 3678 2408 1510 872 433 185 78 Fred Waring at Town Center 27930 40 2203 1366 768 369 156 68 Painters Path w/o El Paseo 3517 35 723 342 141 58 II Pasco w/o Highway 74 33430 35 2072 1271 702 330 137 60 e/o San Pablo 17410 25 1139 611 278 115 53 San Pablo n/o Shadow Mt. 3970 25 496 216 87 38 Shadow Mtn, e/o San Pablo 3000 35 658 304 12A 51 Off-Site Traffic Noise Impacts It has been illustrated, as seen in Table III-1, that the increase in future noise levels on the selected roadways that would be due to project related traffic would in most cases be less than i w. dB and thus would not be considered a major impact. The exceptions are Painters Path and San Pablo monitoring sites, which currently carry only minimal local residential traffic. On these streets the calculated impact of the increased traffic due to these projects would be + approximately 5 to 8 dB. However, the measured noise levels at these locations are presently approximately 6 to 9 dB higher than the calculation (math model only) predict, due to noise from the traffic on nearby more heavily traveled streets (see Table 3 in the appendix). Thus the increase in the future noise due to the project related traffic would not be as high as the calculations indicate. +�r However, the projected large increase in the number of vehicles passing in front of the affected residences is likely to be a source of community complaint, especially in the short term when the projects first open and the traffic increases. 13 ow D. Potential Construction Noise Impacts Construction noise of various levels will be generated over the buildout phase of the proposed development. Such noise is usually a short-term impact on the ambient noise level of the community. However, construction activity is often characterized by periods of high noise levels associated with the operation of heavy or specialized equipment. Typical noise levels of individual pieces of heavy construction equipment range from between about 70 and 95 dB(A) o at a distance of 50 feet. Existing residential developments are located in the immediate vicinity Project Areas 1, 6 and 7. These residences potentially could be subject to very high noise levels, in some cases approaching 90 dB(A), especially during the clearing, grading and as excavation operations. The maximum noise generated by the construction operations could be a source of short-term annoyance in the vicinity. W E. Potential On-Site Stationary Noise Impacts Mechanical equipment to provide air conditioning and refrigeration systems for the various commercial buildings could be a source of adverse noise impact on the existing residential im development if not selected and located with proper consideration of the potential noise. Outdoor and rooftop mounted equipment such as cooling towers, air cooled chillers and refrigeration compressor systems can produce noise levels in excess of 70 dB(A) at a distance as of 30 to 50 feet. Equipment can also contain tonal components that can be particularly audible and disturbing. F. Potential On-Site Traffic Noise Impacts Vehicular traffic in the parking areas and driveways along the borders of the project sites could be a source of annoyance to adjacent residents. The noise due to truck movements into and out of the loading docks of the stores and the noise of idling truck engines and diesel engine driven refrigeration units on trucks in the loading areas serving restaurants could have a significant impact on the residences if not adequately controlled. �r. r o,,, 14 r IV. SUMMARY OF MITIGATIONS AND RECOMMENDATIONS A. Introduction The following discussion of mitigation measures is not meant to be prescriptive but is rather meant to provide guidance for future conditioning of project designs when they are submitted to the City for approval. Nonetheless, many of the recommended measures will have a direct effect of reducing the opportunity for adverse noise impacts associated with the development and operation of the proposed project sites. The recommendations section also addresses the opportunities available to staff to establish mitigation and monitoring programs which will help to assure compliance with stat and local standards and regulations with regard to noise impacts. B. Construction Noise Mitigation Measures All construction equipment should be provided with functional mufflers to limit noise emissions. In accordance with the provisions of the Noise Ordinance of the City of Palm Desert, all construction activity should be restricted to the daytime hours and during weekdays only. Only emergency work should be allowed to occur outside these hours. When possible, grading and/or excavation at portions of the sites closest to existing residential areas should occur during mid-day in order to minimize the potential for disturbance of the residents. �r C. On-Site Stationary Noise Mitigation Measures Design, selection and placement of the mechanical equipment for the various buildings should include consideration of the potential impact of the noise on the surrounding residential development. Sound attenuating measures, such as silencers and/or barriers should be provided where necessary at outdoor equipment and air intake and discharge openings for building ventilation. Strict compliance with the property line noise limits contained in the City's Noise Ordinance would minimize the potential for adverse impacts. D. On-Site Traffic Noise Mitigation Measures The noise produced by vehicular traffic in the parking areas and driveways around the perimeter of the site could be a source of annoyance in the adjacent residential areas. Where possible, access to the projects should be designed so that the majority of the traffic is directed away from the existing neighboring residential developments. r. 15 Loading docks, if located near residential areas, should be provided with acoustical barriers of adequate height to shield the tops of truck exhaust stacks and the exhausts of top mounted engine driven refrigeration units. If the loading docks are located below grade, entry openings should be oriented away from the existing residences. Also, barriers must be of adequate height and length to shield the exhaust stacks until the entire length of the tractor/trailer combination is completely clear of the slope. Hours for loading should be restricted to daytime and early evening. m E. Off-Site Traffic Noise Mitigation Measures dw As shown in Table III-1, the impacts associated with project generated traffic on the overall future noise conditions generated by the major arterials in the surrounding community will be minimal, typically between 0.5 and 1.0 dB. These increases would not necessitate specific +rr mitigation measures. The calculated traffic noise increases on the two local residential streets, Painters Path and San Pablo, could be significant. The calculations show approximate noise level increases due to these projects of approximately 5 to 8 dB. However, the actual increases are likely to be significantly less than the calculations indicate due to the fact that the actual noise levels presently existing at these locations (see Table 3 of the appendix) are approximately 6 to 9 dB higher than calculated (math modeled) for the present traffic, due to noise contributed from the major streets in the vicinity. F. Recommendations While the above analysis indicates that the proposed project areas will not significantly contribute to the degradation of the noise environment, or will do so within acceptable standards set forth by the city, state and federal regulatory agencies, there are still numerous �r areas where the project impacts can be further reduced. The City should prepare a Noise Mitigation Monitoring and Reporting Program in accordance with Assembly Bill 3180, subsequent to the certification of the EIR and should carefully develop and enforce development specific mitigation measures to address those sensitive receptors identified in this report. Such a program will clearly identify what measures are to be taken and which party/department shall be responsible for their implementation and enforcement. 16 as N 6 TECHNICAL APPENDIX A im TRAFFIC NOISE MONITORING AND NOISE IMPACT ANALYSIS REPORT No FOR AHMANSON COMMERCIAL DEVELOPMENTS PALM DESERT CALIFORNIA r�r Prepared By ift Walker-Celano,Associates Acoustical Engineers w 2659 Townsgate Road, Ste 112 Westlake Village, CA. 91361 am r �.r ,,,, 17 err �w it TRAFFIC NOISE MONITORING AND NOISE IMPACT ANALYSIS REPORT FOR AHMANSON COMMERCIAL DEVELOPMENTS PALM DESERT, CALIFORNIA it October 18, 1989 Prepared for: Terra Nova Planning & Research, Inc. 275 N. El Cielo, 0-3 Palm Springs, CA 92262 Ahmanson Commercial Development Page 1 October 18, 1989 INTRODUCTION Ahmanson Commercial Development Company is proposing development of seven mixed use commercial sites in the City of Palm Desert. Due to the ' proximity of the proposed projects. to existing residential land uses, an analysis of the existing and projected traffic noise levels in the vicinity of the sites and an analysis of the potential impacts on the community has been requested. MONITORING SITES Nine (9) sites along potentially noise impacted streets were selected by City Staff and Terra Nova for field noise monitoring and tw computer modeling. The site locations were as follows: Site #1. 75 ft northeasterly of the centerline of Highway 111 , adjacent • to the northerly parking lot of the Travelers Inn Hotel . Site #2 75 ft northeasterly of the centerline of Highway 111, in the vacant lot northwesterly of Ocotillo Drive. Site #3 75 ft north of the centerline of Fred Waring Drive, in the vacant lot east of Town Center Drive. Site #4 3 ft from the southerly curb of Painters Path, in front of the hedge row of residence at 1705. Site #5 75 ft south of the centerline of El Paseo, on the front lawn of Fire Station #l . Site #6 50 ft south of the centerline of Shadow Mountain Drive, in the vacant lot west of 73595. Site #7 30 ft west of the centerline of San Pablo Drive, on front lawn of residence at 45407. Site #8 50 ft north of the centerline of E1 Paseo, in parking lot east of commercial building at 73520. sir Ahmanson Commercial Development Page 2 October 18, 1989 Site #9 75 ft north of the centerline of Highway 111 , in the vacant lot east of Cook Street. MEASUREMENT PROCEDURE The measurements were made utilizing a Larson-Davis Laboratories type 3100 1/3-octave integrating real time analyzer connected to a Toshiba 1100+ portable computer. Prior to each series of measurements, the calibration of the system was checked using a gruel & Kjaer type 4230 acoustic calibrator (certification 6/89) . The duration each of the • measurement samples was 15 minutes. For all of the measurements, the microphone was fitted with a Bruel & Kjaer type UA 0237 wind screen, mounted on a stand at a height of 5' above the ground and "aimed" in the direction of the presumed dominant noise source. It should be noted that except at the very high sound frequencies, the directional characteristics of the microphone utilized are essentially omnidirectional , and thus the exact orientation is only of secondary importance. For each of the measurements, the analyzer computed the Leq 1/3 octave spectrum and overall A-weighted and Un-weighted noise levels. Concurrently, the analyzer transferred the instantaneous A-weighted noise levels at a rate of 10 samples per second to the portable computer for storage on magnetic disk. At the end of the sample period, the Leq 1/3 octave spectrum, A-weighted and Un-weighted overall noise levels and a date/time stamp were read into the computer and stored on magnetic disk. From these disk records, graphic level versus time recordings and statistical analyses of the measured samples were produced in the laboratory. Copies of the computer output data sheets are appended to this report and the measurement results are summarized below. MEASUREMENT DATA PRESENTATION The graphic level recordings, cumulative statistical distribution plots and 1/3 octave Leq spectra for each of the measurements are presented aw in the Appendix. A summary of the data for the various measurement sites and times of day are presented in Table 1 below. aw Ahmanson Commercial Development Page 3 October 18, 1989 Background Ambient Intrusive Site Date Time L90 Lea Li 1 10/7 0027-0042 47.8 dB 60.0 dB 70.4 dB 1 10/7 0836-0851 50.1 65.2 73.8 1 10/6 1404-1419 52.3 66.7 74.1 1 10/7 1643-1658 51.8 65.7 73.1 2 10/7 0906-0921 50.8 65.5 74.8 2 10/6 1457-1512 52.6 65.3 72.2 2 10/7 1711-1726 48.9 64.1 71.5 2 10/6 2037-2052 49.6 63.4 71.3 3 10/7 0936-0951 48.1 61.7 71 .6 3 10/6 1540-1555 49.3 63.8 73.2 3 10/7 1739-1754 48.3 60.9 70.3 3 10/6 2106-2121 47.3 59.1 69.5 4 10/7 1002-1017 45.9 54.3 67.4 4 10/6 1613-1628 50.3 58.2 70.4 4 10/7 1805-1820 50.4 57.0 68.6 4 10/6 2134-2149 47.6 52.7 63.9 5 10/7 1029-1044 50.3 61.1 69.1 5 10/7 1426-1441 49.7 60.4 68.0 5 10/6 1650-1705 52.1 62.7 70.9 5 10/6 2202-2217 48.6 57.7 67.3 6 10/7 1122-1137 37.2 54.6 66.2 00 6 10/7 1332-1347 40.2 52.4 64.3 6 10/6 1721-1736 38.8 55.5 66.5 6 10/6 2256-2311 39.4 50.0 64.1 00 7 10/7 1055-1110 42.0 53.9 66.5 7 10/7 1354-1409 40.0 55.8 68.7 7 10/6 1756-1811 41.3 55.6 68.6 7 10/6 2231-2246 45.7 51 .9 64.5 8 10/1 1255-1310 50.0 61.3 69.5 8 10/7 1617-1632 50.6 60.5 68.6 8 10/6 1832-1847 50.6 60.3 70.0 8 10/6 2320-2335 47.2 56.9 69.2 9 10/7 1223-1238 54.3 67.7 75.0 MW 9 10/7 1507-1522 54.8 67.3 74.9 9 10/6 1910-1925 57.2 67.0 73.9 9 10/6 2355-0010 47.2 64.5 72.8 ow Table I Summary of Measured A-weighted Traffic Noise Levels �r Ahmanson Commercial Development Page 4 October 18, 1989 r w TRAFFIC NOISE PREDICTION Traffic noise CNEL contour locations were calculated for the road segments at each of the measurement locations for the present traffic flow conditions, and for the predicted year 2000 traffic both without and with the proposed projects. The results of -these calculations are tabulated in the Appendix. The model utilized was based on the standard FHWA-RD77- 108 procedure modified to incorporate a more realistic model for ground and atmospheric attenuation factors, and incorporating the CALVENO reference noise emission levels. It should be noted that these calculated contour locations are for an "infinite" length road and "bare" site conditions, i .e. no significant obstructions between the roadway and the observer location. Thus, these noise levels would only be directly applicable at the faces of the first row of buildings or on the street side of a roadside noise barrier. The actual noise levels that would occur at a given location would be reduced by the shielding that would be provided by any intervening structures, barriers or terrain features. �. In addition, the incremental increase in the year 2000 traffic noise levels at each of the measurement locations that would be due to the project related traffic was calculated. The results of these calculations are summarized in Table 2. Year 2000 ADT Year 2000 CNEL Road No Proj. With Proj. Increase Due To Proj . "" Hwy III w/o Bob Hope 65630 74220 0.53 dB s/o F. Waring 55950 69850 0.96 at Cook St. 41600 48280 0.65 F. Waring at Town Cntr. 23350 27930 0.78 Painters Path w/o E1 Paseo 1127 3517 4.94 �. E1 Paseo w/o Hwy 74 28820 33430 0.64 e/o San Pablo 15160 17410 0.60 San Pablo n/o Shadow Mtn 600 3970 8.21 +w Shadow Mtn e/o San Pablo 2630 3000 0.57 Table 2 Increase In Calculated Future CNEL Due to Proposed Projects wr Ahmanson Commercial Development Page 5 October 18, 1989 A In order to verify the order of magnitude of the calculated noise contours, a series of acoustic measurements was taken at the nine 60 locations described above. At each location, four 15 minute measurements were taken, three during daytime hours and one at night between 10 p.m. and midnight. From these measurement points, the "Measured CNEL" was WN computed. A weighting of 7 dB was applied to the nighttime measurements instead of the normal 10 dB, since they were taken during pre "dead-of- night" hours. go The same prediction model which was used for computation of the CNEL contours was used to calculate the CNEL at the actual measurement distance aw along each roadway. Table 3 shows the comparison of the Measured CNEL and Calculated CNEL for each measurement position. 110 Site Distance to CL Measured CNEL Calculated CNEL #1 75' 65.6 65.5 #2 75' 67.3 66.2 #3 75' 63.6 60.5 #4 28' 57.7 51.7 #5 75' 62.3 59.9 #6 50' 54.7 51.9 #7 30' 56.4 45.2 #8 50' 61.4 54.7 #9 75' 68.7 66.6 Table 3 Comparison of Measured and Predicted Noise Levels It may be noted that the agreement between measurement and calculation is within approximately 3 dB at locations where the noise environment is essentially dominated by a single roadway. At locations along very lightly travelled roads, noise from other sources dominates, and the measured levels are higher than predicted. The only case where this did not occur was at position 6, which was sufficiently distant from heavily travelled roads. In general , the measurements confirm the computational model , demonstrating that the project area is not acoustically "unusual ." r it Ahmanson Commercial Development Page 6 No October 18, 1989 to PROJECT IMPACT ON THE COMMUNITY The impact of the proposed projects on the adjacent communities will io take several forms. These would include: construction noise, noise due to stationary sources on the . project site, such as the mechanical equipment serving the various buildings, noise due to motor vehicle so movement on the site, and the noise due to project related traffic on the surrounding arterials. io Construction Noise: Construction noise will occur during the development of the projects and the potential impact on the adjacent residential communities must considered. Construction noise is typically a short--term impact on the ambient noise level in the community, however it is often characterized by periods of high noise levels due to the operation of heavy equipment. It is crucial that every effort be made during the construction to minimize the noise at adjacent residential areas. Typical noise levels that are produced by individual items of heavy W" construction equipment range between approximately 70 and 95 dB(A) at a distance of 50 ft (ref. U.S.E.P.A. NTID300.1) . Existing residential so developments are located in the immediate vicinity of Project areas 1, 6 and 7. These residences potentially could be subject to very high noise levels, in some cases approaching 90 dB(A), especially during land 00 clearing, grading and excavation operations. Thus, the maximum noise generated by the construction operations could be a source of short term annoyance in the community. a On Site Stationary Noise Sources: The mechanical equipment for the air conditioning and refrigeration systems for the various commercial buildings to be located on the project sites could be a source of adverse noise impact on the existing adjacent residential communities if it is not selected and located with proper consideration of the potential noise. Outdoor and rooftop mounted ow equipment such as cooling towers, air cooled chillers and refrigeration compressor systems can produce noise levels in excess of 70 dB(A) at distances of 30 to 50 ft. In addition, equipment noise often contains Ahmanson Commercial Development Page 7 October 18, 1989 tonal components that can be clearly audible and annoying at levels that are below the ambient noise at the receiving location. Complaints such as these could occur even though the equipment noise is not noticeable in the immediate vicinity of the building due to the shielding effect of the edge of the roof and/or the parapet. On-site Vehicle Noise: Automobile and truck traffic in the parking areas and driveways of the project sites could be a source of annoyance at the nearby residences. The noise of truck movements into and out of the loading docks and the noise of idling truck engines and diesel engine driven refrigeration units on trucks in the loading docks could be a significant impact on the residences if inadequately controlled. Off-site Traffic Noise: It can be seen upon examination of Table 2, that the incremental change in the future noise levels on the selected roadways, that would be due to the project related traffic would in most cases be less than 1 dB and thus would not be considered a major impact. The exceptions are Painters Path and San Pablo which presently carry only local residential traffic. On these streets the calculated impact of the increased traffic due to these projects would be approximately 5 to 8 dB. However, the measured noise levels at these locations are presently approximately 6 to 9 dB higher than the calculations predict, due to noise from the traffic on the nearby heavily traveled streets (see Table 3) . Thus, the increase in the future noise due to the project related traffic would not be as high as the calculation indicates. However, the projected large increase in the number of vehicles passing in front of the residences is likely to be a source of community complaints,. especially in the short term when the projects first open and the traffic increases. ■ Ahmanson Commercial Development Page 8 ,. October 18, 1989 MITIGATION Construction Noise: All construction equipment should be provided with functional mufflers to limit noise emissions. Construction activity should be aw restricted to the daytime hours in accordance with the provisions of the Noise Ordinance of the City of Palm Desert. Only emergency work should be allowed to occur outside of these hours. When possible, grading and/or excavation operations at portions of the sites, closest to the existing residential areas, should occur during the middle of the day in order to minimize the potential for disturbance of the neighboring residents. On Site Stationary Noise Sources: wo The design, selection and placement of the mechanical equipment for the various buildings on the projects should include consideration of the potential impact on the adjacent residential communities of the noise produced by the equipment. Appropriate sound attenuating measures such as silencers and/or barriers should be provided where necessary at outdoor equipment such as cooling towers, air cooled condensers and refrigeration compressors/condenser units, and at .the air intake and discharge openings for the building ventilation systems. Strict compliance with the property line noise limits contained in the City Noise Ordinance would minimize the potential for adverse impacts. On-site Vehicle Noise: The noise produced by automobiles operating in the parking areas and driveways around the perimeter of the project site could be a source of annoyance in the adjacent residential areas. Where possible, access to the projects should be designed so that the majority of the traffic is directed away from the existing neighboring residential developments. Loading docks, if located near residential areas should be provided with acoustic barriers of adequate height to shield the tops of the truck exhaust stacks and the exhausts of top mounted engine driven refrigeration units. If the loading docks are to be located below site grade, the entry openings should be oriented away from the residential community. In addition, the barriers should be of adequate height and length to shield Ahmanson Commercial Development Page 9 October 18, 1989 the exhaust stacks until the entire length of the tractor/trailer combination is completely clear of the slope. Hours of operation of loading docks should be restricted to daytime and early evening. Off-site Traffic Noise: As shown in Table 2 above, the impact of the project generated traffic on the overall future traffic conditions on the major arterials in the surrounding community will be minimal , typically between 0.5 and 1.0 dB. These increases would not necessitate specific mitigation measures. The calculated traffic noise increases on the two "local " residential streets, Painters Path and San Pablo could be significant. The calculations show approximate noise level increases due to these projects of approximately 5 to 8 dB. However, the actual increase is likely to be significantly less than calculated due to the fact that the actual noise levels presently existing at these locations, as shown in Table 3, are approximately 6 to 9 dB higher than calculated for the present traffic, due to noise contributions from the major streets in the vicinity. Respectfully submitted, Z- Joseph W. Celano, P.E. Appendix A Page Al Definitions The following is not intended as a comprehensive glossary of acoustic terminology, however it will provide sufficient information to allow a better understanding of the technical language contained in this document. ■ Decibel (dB) - A unit division on a logarithmic scale whose base is the tenth root of ten, used to represent ratios of quantities proportional to power. [In simple terms, if the power is multiplied by a factor of ten, then ten is added to the representation of the power on the decibel scale. If 0 dB represents 1 unit of power, 60 dB represents one million units, etc.] Sound Pressure Level (SPL - dB) - The ratio, in decibels, of the mean squared sound pressure to the square of the reference pressure, 20 micropascals. ■ A-weighted Sound Level (SLA - dB(A)) - Sound pressure level measured using the A-weighting network, a filter which discriminates against low and very high frequencies in a manner similar to the human hearing mechanism at moderate sound levels (ref. ANSI S1.4) . Time Average Sound Level (Leqr - dB) - The level , in decibels, of the mean squared sound pressure averaged over time period T. This is often referred to as the "equivalent sound level" and hence the ■� "eq" subscript. The equivalence is to a sound of constant level which has the same total acoustic energy content. Day-Night Average Noise Level (Lan - dB(A)) - The long term average sound level , weighted as follows: a. Frequency response is filtered using the A-weighting network. b. Sounds occurring during the nighttime hours between 10 p.m. and 7 a.m. are weighted by 10 dB (equivalently, the number of noise events is multiplied by 10) . ■ Community Noise Equivalent Level (CNEL - dB(A)) - The long term 'w average sound level , weighted as follows: a. Frequency response is filtered using the A-weighting network. M. Appendix A Page A2 Definitions b. Sounds occurring during the evening hours between 7 p.m. and 10 p.m. are weighted by 5 dB (equivalently, the number of noise events is multiplied by 3.15) C. Sounds occurring during the nighttime hours between 10 p.m. and 7 a.m. are weighted by 10 dB (equivalently, the number of noise events is multiplied by 10) . Percentile Exceeded Sound Level (LPE - dB) - The sound level (usually ■ A-weighted) which is exceeded PE percent of a specified time period. Sound Exposure Level (SEL - dB) - The logarithmic product of the average noise level (usually A-weighted) and the time duration. (It is not an actual measured noise level , but rather it is used in the computation of long term averages such as CNEL and Lan. ) Octave Band Sound Pressure Level (dB) - The sound pressure level measured using a band-pass filter whose upper cutoff frequency is two times the lower cutoff frequency, and which is identified by the nominal geometric center frequency of the pass band. One-Third Octave Band Sound Pressure Level (dB) - The sound pressure level measured using a band-pass filter whose upper cutoff frequency is the cube root of two times the lower cutoff frequency, and which is identified by the nominal geometric center frequency of the pass band. �. Sound Spectrum - The representation of an acoustic signal in terms of its level versus frequency. The most common method for determining the sound spectrum is with an analyzer consisting of a series or bank of contiguous octave or 1/3 octave band filters and a bar-graph or numerical tabular display, known as a real -time ■. analyzer Ambient Noise - The noise which results from the combination of all sources, near and far. The ambient noise level is expressed as Legr, Lan or CNEL as judged appropriate to the situation. ■ Background Noise - The steady noise level which characterizes a given environment in the absence of transient sources. The Appendix A Page A3 ., Definitions background noise is usually expressed as Lvo, the noise level which is exceeded 90% of the specified time period. �' ■ Intrusive Noise - Noise from an identifiable source which causes a discernable change in the existing acoustic environment. Noises can be intrusive by virtue of excessive overall level , or as the result of unusual spectral or temporal characteristics. Noise Contour - A line on a map which indicates locations of constant ambient sound level near or around known sources of noise. In practice, noise contours are often shown as calculated for the dominant sources of noise only. v1 N J t0 v1 vl vn n n n r r r r r r O Nvn Jn O 00 O O O O O g0 n %D H H v1 O M v1 ZO V1 10 v �O �p H �D V1 10 M �0 .n 0 O O N O a, O of O O v1 O t4 O H M co n gn0 10 a vl �D M� 10 Iq 10 vl •.per 00 O vn 00 v1 H In N co %n v" T 7— y-1 ^ a0VN i H H H �..] O %0 M w O O N O H H O 10 O J �s�j7 vl H1�O O ✓l vl J vl N� Iq cV N N •M-� M H p v� 3n O o0 Ln M Ln vl N rn �n %O Ln 00 O J Wn• p cl In H d J 10 N M M M t V N-4 cq 6`�"t v�vi vi r�'! v1 •��! �n `Tt v�'�n P�t 'n �' '�1 5d H H H H •^•1 Ft H H H H q N vOi goo C NgoN 6 n J rn op N M Mq.n-1 M M r 10 d ul �D In O In vl v1 vl vl n 10 r n r n r n O O In O H O O v1 b O r .77 10 n 10 r r In n r H H H v1 H N O v1 10 vl N t"1(71 � al cn'1 CM'7 Iq 10 H u p OJJ o n o o O 1 �o D r 0 0 10N `O N H 10 10 H r n CO M a XOi v1 c0 v1 vl v1 In �/1 ZO 11 M Vol +n u1 H Ul %on N 3 u'1 10 N 'n H I H H H O ON vl J b O N O r o O n O u'% y1 N O trtyy N v1 v1 g0.O InJ �n N N N N •--� "�Y o -t m O p Np tn J J A s —10 d H J O O M N d N M O O H W N M M M H H V,In J J vl F. F. FFT... LH1 O o b cl) ID qH c� qH N H N.op FH S qH M 10C tMt�� 6 H m Ln •L �a 6 N o 2 N N H ul v1�p O� V1 In Ul v1 V'l r Vl Vl 1n r n n r r O O ccpp O O n N H M r ✓1 r r �Y' n r H H H v1 N 'O J v1 N CD N M 10 H 10 p .ZP n t V O 00 O O N r O O n .0 a, N `O p •D N%0 10 10 cq .1 � O O P rn vvN Vl W zg N Ul% m U N H O1 H.-4 H co aCD o pp IDO H O t'1 vpI un .N-C Yl C14 vpl O ID vt J In -4 H N v1 M O n u1 N O vl op O v1 M vm co J 10 O m 10 J J M J ^ J O J N M N(n d J VV') W .�tp M W M CAW N W on Tq• O•ri S F�• ch £ O C� ai a. o+co �n N aw 0 C 04 E �` pp cp 22'7140 DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT. Between THE PALM DESERT REDEVELOPMENT AGENCY and AHMANSON COMMERCIAL DEVELOPMENT COMPANY 227140 TABLE OF CONTENTS Description Page RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 . 1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 . 2 Acquisition Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 . 3 Added Territory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1 .4 Agency Deed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1 .5 Original Territory. . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1 . 6 Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1 . 7 Public Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1 . 8 Site. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1 . 9 Site Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1 . 10 Certain Other Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2 . EFFECTIVE DATE; TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2 . 1 Effective Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2 .2 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3 . GENERAL DEVELOPMENT OF PROJECT; AGENCY FINDINGS AND ACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3 . 1 Agency Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3 . 2 Agency Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4 . ACQUISITION AND DISPOSITION OF SITE. . . . . . . . . . . . . . . 10 4 . 1 Agency's Acquisition of the Site by Negotiation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4 . 2 Agency's Acquisition of the Site by Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4 . 3 Conditions Precedent to the Commencement of the Acquisition of the Site; Preliminary Work by the Developer. . . . . . . . . . . . 14 4 . 4 Agency's Failure to Acquire Site; Developer Acquisition of Site. . . . . . . . . . . . . . . . 18 4 .5 Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4 . 6 Method of Financing the Acquisition ofthe Site. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4 . 7 Escrow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 4 . 8 Conveyance of Title and Delivery ofPossession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 4 . 9 Form of Deed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 4 . 10 Condition of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . 28 4 . 11 Order of Immediate Possession. . . . . . . . . . . . . . . . 28 4 . 12 Time and Place for Delivery of Agency Deed and Recordation Thereof. . . . . . . . . . . . . . . . . 30 4 . 13 Title Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4 . 14 Taxes and Assessments . . . . . . . . . . . . . . . . . . . . . . . . 31 i 227140 4 . 15 Conveyance Free of Possession. . . . . . . . . . . . . . . . 32 4 . 16 Zoning of the Site. . . . . . . . . . . . . . . . . . . . . . . . . . . 32 5 . SITE DEVELOPMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 5 . 1 Agreement to Develop Site. . . . . . . . . . . . . . . . . . . . 32 5 . 2 Cost of Construction; Reporting toAgency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 5 . 3 Phasing of Site Development. . . . . . . . . . . . . . . . . . 35 5 . 4 Indemnification During Construction; Bodily Injury and Property DamageInsurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 5 . 5 Antidiscrimination During Construction. . . . . . . 38 5 . 6 Local, State, and Federal Laws . . . . . . . . . . . . . . . 39 5 . 7 City and Other Governmental Agency Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 39 5 . 8 Rights of Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 5 . 9 Taxes, Assessments, Encumbrances andLiens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 5 . 10 Prohibition Against Transfer. . . . . . . . . . . . . . . . . 41 5 . 11 Security Financing; Right of Holders; Holder Not Obligated to Construct. . . . . . . . . . . . 45 5 . 12 Notice of Default to Mortgagees, Beneficiaries of Deeds of Trust or Other Security Interest Holders; Right to Cure; Limited Liability. . . . . . . . . . . . . 46 5 . 13 Right of Agency to Cure Mortgage, Deed of Trust, or Other Security Interest Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 5 . 14 Right of the Agency to Satisfy Other Liens on the Property After Title Passes . . . . . 48 5 . 15 Certificate of Completion. . . . . . . . . . . . . . . . . . . . 49 6 . USE OF THE SITE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 6 . 1 Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 6 . 2 Maintenance of the Site. . . . . . . . . . . . . . . . . . . . . . 51 6 . 3 Obligation to Refrain From Discrimination. ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 6 . 4 Form of Nondiscrimination and NonsegregationClauses . . . . . . . . . . . . . . . . . . . . . . . 53 7 . CONSTRUCTION OF PUBLIC IMPROVEMENTS . . . . . . . . . . . . . . . 54 7 . 1 Agreement to Construct Public Improvements . . . 54 7 .2 Cost of Construction; Reporting toAgency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 7 . 3 Construction of Public Improvements . . . . . . . . . . 56 7 . 4 Agency Reimbursement; Pledge of TaxIncrement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 7 . 5 Indemnification During Construction; Bodily Injury and Property Damage Insurance. . . . . . . . . 63 7 . 6 Antidiscrimination During Construction. . . . . . . 65 7 . 7 Local, State, and Federal Laws . . . . . . . . . . . . . . . 65 ii 22'7140 7 . 8 City and Other Governmental Agency Permits . • • 66 66 7 . 9 Rights of Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 7 . 10 Prohibition Against Transfer. . . . . . . . . . . . . . . . . 7 . 11 Security Financing; Holder Not Obligated to Construct. . . . . . . . . . . . . . . . . . . . . . . 69 7 . 12 Public Improvement Certificate of Completion; Final Public Improvement Certificate of Completion. . . . . . . . . . . . . . . . . . . . 69 8 . DURATION OF COVENANTS; DEFAULTS, REMEDIES AND TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . 72 8 . 1 Effect and Duration of Covenants andAgreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 8 . 2 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 8 . 3 Institution of Legal Actions . . . . . . . . . . . . . . . . . 74 8 . 4 Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 8 . 5 Acceptance of Service Process . . . . . . . . . . . . . . . . 74 8 . 6 Rights and Remedies are Cumulative. . . . . . . . . . . 75 8 . 7 Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 8 . 8 Specific Performance. . . . . . . . . . . . . . . . . . . . . . . . . 76 8 . 9 Termination by Developer. . . . . . . . . . . . . . . . . . . . . 76 8 . 10 Termination by Agency. . . . . . . . . . . . . . . . . . . . . . . . 77 9 . GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 9 . 1 Notices, Demands and Communications Betweenthe Parties . . . . . . . . . . . . . . . . . . . . . . . . . . 78 9 .2 Conflicts of Interests . . . . . . . . . . . . . . . . . . . . . . . 79 9 . 3 Nonliability of Agency Officials andEmployees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 9 . 4 Enforced Delay; Extensions of Time ofPerformance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 9 . 5 Real Estate Commissions . . . . . . . . . . . . . . . . . . . . . . 81 10 . ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS. ... . . . . . . . 81 11 . MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 12 . TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY; DATE OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 iii 22'7140 LIST OF EXHIBITS Exhibit Designation Description A Redevelopment Plan Project Area 1 B The Property C The Development Agreement D The Site E Added Territory to Project Area 1 F Original Territory Project Area 1 G Development Standards for the Project H Public Improvements I Schedule of Performance J Grant Deed K Letter of Credit L Schedule of Permitted Exceptions M Scope of Development N Promissory Note EXHIBIT "A" 227140 All that certain real property and appurtenances thereto, and all improvements now or hereafter located thereon, situated in the County of Riverside, State of California, and described as follows : That portion of Section 19 , Township 5 South, Range 6 East, San Bernardino Base and Meridian, according to the Official Plat of said land approved by the Surveyor General July 15, 1986 , described as follows : COMMENCING at the Northwest corner of the Northwest quarter of said Section; thence Westerly along the North line of the Northwest quarter of said Sections, South 89 degrees 28 minutes East, a distance of 437 . 02 feet ; thence North 58 degrees 59 minutes East, a distance of 417 . 81 feet ; thence South 31 degrees 01 minutes East, a distance of 150 feet; thence South 58 degrees 59 minutes West, a distance of 162 . 97 feet; thence South 89 degrees 28 minutes West, a distance of 295 . 68 feet to the true point of beginning: EXCEPT that portion described as follows: COMMENCING at the Northeast corner of said Northwest quarter; thence along the North line of said Section 19 , South 89 degrees 14 minutes 15 seconds West, 1 , 229 . 46 feet ; thence South 0 degrees 11 minutes 40 seconds East, 1 , 150 . 01 feet ; thence North 89 degrees 14 minutes 15 seconds East, 437 . 02 feet; thence North 58 degrees 45 minutes 15 seconds East, 451 . 37 feet to one true point of beginning ; thence south 31 degrees 07 feet 61 minutes East, 150 feet ; thence North 58 degrees 45 minutes 15 seconds East, 6 . 20 feet; thence North 31 degrees 14 minutes 45 seconds West, 150 feet; thence South 58 degrees 45 minutes 15 seconds West, 5 . 87 feet to the true point of beginning, as reflected in Deed recorded June 26 , 1963 in Book 3427 , page 508 from Hoams Construction Company to the City of Riverside. ALSO EXCEPTING therefrom that portion conveyed to the County of Riverside by that Corporation Grant Deed recorded May 11 , 1966 as Instrument No. 49649 , official Records , Riverside County records. Said Land is located in the City of Palm Desert. W 227140 DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT THIS AGREEMENT (sometimes referred to hereafter as I s� "Agreement" ) is entered into on May 1990, by and between THE PALM DESERT REDEVELOPMENT AGENCY (the "Agency" ) and AHMANSON COMMERCIAL DEVELOPMENT COMPANY, a California corporation and its successors and assigns (the "Developer" ) . The Agency and the Developer agree as follows : RECITALS This Agreement is entered into on the basis of the following facts, understanding and intentions of the parties : A. Health and Safety Code Sections 33000, et. seq. , (the "Redevelopment Legislation" ) authorize the Agency to enter into agreements with property owners and the purchasers of property for the purpose of furthering the development of property within a project area in conformity with the development conditions set forth in the redevelopment plan pertaining to such project area, and provide for the Agency's participation in such development, including, but not limited to, the construction of public improvements related thereto and the manner of the payment 1 22'7140 of the costs thereof and the acquisition by the Agency of land necessary for such development. B. The Agency has heretofore prepared and approved the redevelopment plan attached hereto as Exhibit A (the "Redevelopment Plan") for its Project Area No. 1 (the "Project Area") , which Project Area encompasses the land to be developed and acquired pursuant to this Agreement. C. The Developer is or will be the owner of that certain real property located within the Project Area and more completely described in Exhibit B attached hereto (the "Property") . D. The City of Palm Desert (the "City") and the Developer have entered into that certain Development Agreement (the "Development Agreement") dated May 1, 1990 and attached hereto as Exhibit C, pertaining to the Property which is the subject of this Agreement, and by which the City has acknowledged that the development of -such land as set forth therein and herein is consistent with and in furtherance of the development goals and policies of the City. E. The Agency has determined that the development of the Property in the manner provided herein and in the Development Agreement is in conformance with and in furtherance of the Redevelopment Plan. F. The development of the Property in the manner described herein and in the Development Agreement will 2 22'7140 require a major investment by the Developer, and the Agency has determined that the public benefits to be derived from such development justify the Agency entering into this Agreement for the purpose of providing certain benefits and assistance to the Developer with respect to such development. G. The Agency has determined that the participation by the Agency in the acquisition by the Developer of that certain portion of the Property described in Exhibit D attached hereto (the "Site") and the conveyance of the Site to Developer in the manner provided herein is authorized by the Redevelopment Legislation and the Redevelopment Plan and is consistent with and in furtherance of the goals and policies of the Redevelopment Plan. H. The Developer acknowledges that the agreement of the Developer contained herein to develop and maintain the Site in accordance with the terms and provisions of the Redevelopment Plan and this Agreement is a material inducement for the Agency to enter into this Agreement and provide assistance to the Developer as provided herein. I. The Agency has found and determined that the development and construction of the Public Improvements (as hereinafter defined) are of benefit to the entire Project Area and that the Agency's agreement and obligation to reimburse the Developer for certain costs associated with the development and construction of certain of the Public 3 227140 Improvements as set forth herein is consistent with the purposes of and authorized by the Redevelopment Plan and the Redevelopment Legislation. J. In order to effectuate the foregoing, the parties desire to enter into this Agreement. NOW, THEREFORE, pursuant to the authority contained in the Redevelopment Legislation and the Redevelopment Plan, and in consideration of the mutual covenants and promises herein contained, the parties agree as follows: 1. Definitions. 1. 1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1. 2 Acquisition Costs. An amount equal to all costs and expenses of the Agency (excluding any Agency overhead costs) incurred with respect to the acquisition and conveyance of the fee interest in the Site as provided herein including, but not limited to, the acquisition price of the Site and any improvements thereon, severance damages, payments for loss of business good will, reasonable attorney's fees and costs, court costs, expert witness fees, deposits required by a court in an eminent domain proceeding to obtain satisfaction of judgement, any interest on such final judgement, costs of any and all appeals from trial and appellate court judgments, relocation costs, appraisal costs, recording costs, costs of surveys, costs of soils and 4 227140 other tests pertaining to the suitability of the Site for development, title service fees, escrow fees, acquisition agent fees and prorated taxes and assessments, if any. 1. 3 Added Territory. That territory within the boundaries of the City which was added to the original Project Area by Ordinance No. 275 of the City, adopted on November 25, 1981, and as shown on the map attached hereto as Exhibit E. 1. 4 Agency Deed. That certain deed in the form of Exhibit J attached hereto conveying title to the Site from the Agency to Developer. 1. 5 Original Territory. That territory within the boundaries of the City which constitutes the original Project Area established by the City by the adoption of Ordinance No. 80 of the City, adopted on July 16, 1975, and as shown on the map attached hereto as Exhibit F. 1. 6 Project. The mixed-use office/commercial, retail/regional commercial development and associated amenities, and on-site and off-site improvements, as described in Exhibit G attached hereto, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of the Development Agreement. 1. 7 Public Improvements. Those on-site public improvements associated with the Project and which are 5 21?%40 described in Exhibit H attached hereto and further described in Paragraph D of the Scope of Development attached hereto as Exhibit M. 1 . 8 Site. That certain real property described in Exhibit D attached hereto. 1 . 9 Site Development. That phase of development of the Project to be constructed and developed by Developer in connection with the development of the Site, as further described in the Scope of Development. 1 . 10 Certain Other Terms . Certain other terms shall have the meanings set forth for such terms in this Agreement. 2 . Effective Date; Term. 2 . 1 Effective Date. This Agreement has been entered into by the parties as of the date and year first above written, and shall be effective as of such date (the "Effective Date" ) . 2 .2 Term. The term of this Agreement (the "Term" ) shall commence on the Effective Date and shall terminate on the ten ( 10) year anniversary date of the Effective Date, unless sooner terminated or extended as hereinafter provided. 3 . General Development of the Project; Agency Findings and Actions . The parties acknowledge that the Developer cannot at this time predict when or the rate at which or the order in which Project phases will be developed. Such 6 227140 decisions depend upon numerous factors which are not within the control of the Developer, such as market orientation and demand, interest rates, competition and other similar factors. The Agency acknowledges that as a result of these factors affecting the timing of the development of the Project, the City and the Developer have entered into the Development Agreement which provides for the phased development of the Project and the terms and conditions under and with respect to which the Developer shall be entitled to develop and construct the Project and receive all permits, certificates and other entitlements to be issued or provided by the City and necessary for the construction, use and occupancy of the Project. Notwithstanding any provision to the contrary contained herein, the Agency agrees that, except as otherwise herein expressly provided and to the extent permitted by law, the terms and provisions of the Development Agreement shall be controlling as to all matters pertaining to the permitting and entitlement of the Project, the timing and phasing of the development of the Project and the permitted uses to which the Developer may put the Project. The Agency agrees that it will not unreasonably withhold or delay delivery of its consent to any amendment of the Development Agreement pursuant to Section 2 . 3 thereof. The Agency agrees that any successor in interest to the Developer under and pursuant to the terms of the Development Agreement shall automatically 7 2z714o and without the necessity of any action on the part of the Agency be deemed to be the "Developer" under this Agreement for all purposes of Section 3 hereof, and any such successor in interest shall be entitled to the benefits provided to the Developer under Section 3 hereof. 3 . 1 Agency Findings. The Agency has reviewed the Development Agreement and hereby finds and determines that the development of the Project in the manner provided and as contemplated therein will be in furtherance of and consistent with the goals and policies of the Redevelopment Plan, and in conformance with the requirements of the development guidelines contained therein as ad-opted by the Agency pursuant thereto, and that the process of permitting and entitlement set forth in the Development Agreement is consistent with the permitting and entitlement process contained in such development guidelines. 3 . 2 Agency Actions. Based upon the •foregoing findings, the Agency hereby agrees that it will take all actions necessary under the Redevelopment Plan and the development guidelines contained therein, to insure that the benefits afforded to the Developer by the Development Agreement with respect to the permitting and entitlement of the Project, the timing and phasing of the development of the Project and the permitted uses to which the Developer may put the Property, will not be impaired; provided, however, that such obligations of the Agency shall be 8 227140 conditioned upon compliance by the Developer with the terms and provisions of this Agreement and the Development Agreement as provided herein and therein; and further provided, however, that nothing contained herein shall be deemed to constitute a commitment by the Agency to make findings applicable to and necessary for the adoption of a resolution of necessity under the Eminent Domain Law of the State of California (Section 1230. 010 et. seq. of the California Code of Civil Procedure) or to commence one or more actions in eminent domain to acquire the Site. The Agency hereby agrees that, except as otherwise expressly provided herein and in the Development Agreement, the implementation and furtherance of the goals and policies of the Redevelopment Plan and the development guidelines will not require the imposition of any Exactions (as defined in the Development Agreement) , the construction of any public improvements by the Developer, or the reservation or dedication of the land by the Developer for public purposes. In addition, the Agency hereby agrees that the provisions of the Development Agreement pertaining to the process for the application of all permits, certificates and approvals necessary for the development of the Project (including, but not limited to, the development and construction of the Public Improvements) , the fees charged for the processing of such applications and the standards upon which such permits, certificates and approvals will be issued, are consistent 9 227140 with and satisfy the requirements of the Redevelopment Plan and the development guidelines, and that the Agency, except to the extent that the Agency is otherwise required to do so by a final decision of a court competent jurisdiction, (i) will take no actions with respect to the Project in implementing the provisions of the Redevelopment Plan or such development guidelines which are inconsistent with such provisions of the Development Agreement or which would otherwise impair or delay the development of the Project or increase the costs to be incurred by the Developer with respect thereto, or (li) after the date hereof and without receiving the prior written approval of the Developer, adopt or approve an amendment to the Redevelopment Plan or the development guidelines which would affect the Project. 4 . Acquisition and Disposition of Site. Agency does not presently have title to or possession of the Site. In accordance with and subject to terms and conditions of this Agreement, including, without limitation, the Schedule of Performance attached hereto as Exhibit I, the Agency shall use its best efforts to acquire by voluntary purchase and sale, and if successful, then to sell and convey to Developer, and Developer shall purchase and accept from Agency, the fee interest in the Site. Notwithstanding anything herein to the contrary, so long as the Agency otherwise complies with the provisions of this Section 4 , Agency' s failure to commence eminent domain proceedings or 10 22 7140 to acquire the Site through eminent domain proceedings shall not constitute a breach of any of the Agency ' s obligations hereunder and the Agency shall not be liable in any manner whatsoever to the Developer on account of such failure. The conveyance by Agency to the Developer of the fee title to the Site shall be accomplished by the Agency Deed. 4 . 1 Agency' s Acquisition of the Site by Negotiation. Subject to the provisions of 4 . 3 hereof, upon receipt of written request of the Developer the Agency shall commence to use its best efforts to-negotiate the purchase of the Site upon the terms and subject to the conditions with respect to such purchase contained in this Section 4 and subject to the restrictions and requirements of law governing the actions and procedures of the Agency in the acquisition of property. 4 . 2 Agency's Acquisition of the Site by Eminent Domain. If the Agency is unable to acquire the Site by negotiation within ninety (90) days after the receipt of the written request of Developer requesting such acquisition, Agency shall implement the procedures required by law to consider the necessity of exercising the Agency' s rights of eminent domain with respect to the Site. In this regard, not later than the first regular meeting date of the Agency following the expiration of such ninety (90) day period, Agency shall hold a hearing on a resolution of necessity regarding acquisition of the Site from the present owner 11 22'7140 thereof by eminent domain. Nothing herein shall be construed to mean that the Agency is agreeing or has agreed to exercise the right of eminent domain, which right shall be exercised only in the sole discretion of the Agency and only after Agency has determined pursuant to law that there is substantial evidence of the following: (a) The public interest and necessity require the Project; (b) The Project is planned and located in the manner that will be most compatible with the greatest public good and the least private injury; (c) The Site is necessary for the Project; and (d) That either the offer required by Section 7267 . 2 of the California Government Code has been made to the owner or owners of record of the Site, or the offer has not been made because the owner or owners of record cannot be located with reasonable diligence. As a condition precedent to Agency' s exercise of the right of eminent domain, Agency shall make to the owners of the Site the offer required by Government Code Section 7267 . 2 and, if said offer does not result in a negotiated acquisition of the Site by the Agency or by the Developer, the Agency shall hold the above described hearing to determine whether the condemnation of the Site meets the above criteria. In making such determination, the Agency 12 22714© shall engage in good faith and judicious consideration of the merits of the condemnation. Notwithstanding the foregoing, the Agency agrees that the Developer may at its sole option negotiate the acquisition of the Site directly with the owner(s) thereof and acquire the Site anytime prior to the completion of the proceedings for the acquisition of the Site by the Agency or the delivery of possession of the Site to the Developer pursuant to Section 4 . 8 hereof. In such event, the Developer shall upon its acquisition of the Site promptly pay all Acquisition Costs incurred by the Agency prior to the Developer's acquisition of the Site (or, if applicable, the Agency shall draw on the Letter of Credit (as hereinafter defined) in the amount of such Acquisition Costs and the Letter of Credit shall thereafter be immediately returned by Agency to the Developer) and the Agency shall promptly terminate all proceedings for its acquisition of the Site. In the event the Agency adopts a resolution of necessity pursuant to Civil Procedure Code Sections 1245. 210; et. seq. concerning the Site, the Agency shall file a complaint in eminent domain (the "Condemnation Complaint") prior to fourteen (14) days after the date of adoption of such resolution, and the Agency shall provide Developer with a written schedule of its proposed activities (and the timing thereof) with respect to the condemnation of 13 22'7140 the Site and shall, revise said schedule as necessary from time to time to permit the performance of its obligations under this Agreement within the times set forth in the Schedule of Performance. Upon filing the Condemnation Complaint as provided above, the Agency shall diligently prosecute the same until the Agency or the Developer has acquired the Site. Subject to the satisfaction of the applicable conditions set forth in this Section 4 , upon the Agency' s receipt of the fee interest in the Site, Agency shall convey, and Developer shall accept from the Agency, the fee interest in the Site. Nothing contained herein shall limit the right of the Agency at its sole option to negotiate a purchase of the Site from the current owner(s) and/or to consider the necessity of exercising its power of eminent domain with respect thereto sooner than the maximum times provided for herein. 4 . 3 Conditions Precedent to the Commencement of the Acquisition of the Site; Preliminary Work by the Developer. The Agency and the Developer hereby agree that it is essential that the Developer have access to the Site prior to its acquisition by the Agency, through negotiation or the exercise of its right of eminent domain, in order to undertake all necessary and appropriate surveys, tests and inspections (including, but not limited to, soils and water tests and tests and examinations to determine the presence 14 227140 of any toxic or hazardous materials in and or around the Site or in the improvements thereon) to determine the suitability of the Site for development in connection with the Project. The Agency agrees that upon the initiation of the negotiations for the purchase of the Site as provided in Section 4 . 1, it will use its best efforts to require the owner(s) of the Site to permit the Developer to have a period of thirty (30) days to enter the site at the Developer's sole cost and expense to perform the aforesaid tests and inspections. To the extent permitted by law, the Agency will provide in any offer for purchase of the Site that such offer is contingent upon the owner' s granting of such right of access and period of testing and inspections, and that any purchase price specified therein is subject to reasonable adjustment based upon the results of such testing and inspections. In the event, that the owner(s) of the Site will not timely consent to permitting Developer access to the Site at the reasonable request of Developer, Agency shall obtain appropriate pre-condemnation court orders for the purpose of permitting Developer access to the Site to make such surveys, tests and inspections. The Developer agrees that it will promptly pay for all costs of any bonds or undertakings which are required in order to permit the Developer entry onto the Site for 'the purpose of such testing and inspection. All of the aforesaid surveys, tests 15 227140 and inspections will be performed by the Developer to Developer' s satisfaction and the cost of such surveys, tests and inspections shall be borne solely by the Developer. The Agency shall use its best efforts to include in any purchase agreement to be executed in connection with the negotiated purchase of the Site (which provisions shall be expressly stated to survive the closing under such agreement or documents and to be assignable by Agency to Developer) , and shall assign the benefit of such provisions to Developer upon the close of the escrow to be established pursuant to Section 4 . 7, such representations, covenants, and warranties from the owner(s) of the Site as Developer may reasonably request, including, without limitation, the following: (1) This Purchase Agreement and all documents executed by Seller which are to be delivered to Buyer at Closing are and at the time of Closing will be duly authorized, executed, and delivered by Seller, are and at the time of Closing will be legal, valid, and binding obligations of Seller, are and at the time of Closing will be sufficient to convey title (if they purport to do so) , and do not and at the time closing will not violate any provisions of any agreement or judicial, administrative or regulatory order to which Seller is a party or to which it or the Property is subject. (2) At the time of the Closing there will be no outstanding contracts made by Seller with respect to the Property which have not been approved by Buyer and fully paid for by Seller and Seller shall cause to be discharged all mechanics ' or materialmen ' s liens arising from any labor or materials furnished to the Property prior to the time of Closing by or on behalf of Seller. (3) Except as heretofore disclosed in writing by Seller to Buyer, there are no outstanding obligations of Seller, and no obligations burdening the Property, 16 227140 for or with respect to the construction or completion of any on-site or off-site improvements. (4) Seller is not a "foreign person" within the meaning of Section 1445 (f) (3) of the Internal Revenue Code of 1954 , as amended. (5) There are not now, and as of the Closing there will not be any: (A) hazardous wastes, hazardous materials or hazardous substances (as said terms are defined in any applicable federal, state or local laws) located on or within any of the Property (collectively, "Hazardous Materials") , nor, to the best of Seller' s knowledge, have any such Hazardous Materials ever been located on the Property; (B) enforcement, clean-up, removal or other governmental or regulatory actions instituted, completed or threatened pursuant to any applicable federal , state or local laws or ordinances relating to any Hazardous Materials and affecting the Property; (C) claims made or threatened by any governmental agency or official or any other third party against Seller or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials; (D) Hazardous Materials occurrences or conditions on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as "border-zone property" under the provisions of California Health & Safety Code { { 25220-224 et. seq. and implementing regulations; or (E) underground storage tanks located on the Property now or formerly used for the storage or containment of any Hazardous Materials, including without limitation, any petroleum products or by-products. (6) Buyer and Seller agree that Seller shall be solely responsible for the removal and disposal of any and all hazardous, toxic and/or-contaminating materials which were placed in, on or under that portion of the hereinabove described real property owned by Seller. All such hazardous, toxic and/or contaminating materials shall be removed by Seller prior to Seller' s conveyance of said described real property; provided however, the Buyer and Seller hereby agree that in the event Buyer determines that there is any evidence of hazardous, toxic and/or contaminating materials on the property, the escrow agent shall open a reserve account for the deposit by Seller of a reasonable amount of money necessary 17 22'7140 to remove the hazardous and/or toxic materials as such amount may be reasonably calculated by the Buyer. It is further understood and agreed that in the event Seller fails to remove said hazardous, toxic and/or contaminating materials, Buyer or its designee shall have the right to dispose of said materials, at Seller' s sole expense, pursuant to local, County, State or Federal laws and regulations. The cost of such disposal shall be borne by the Seller out of its own funds and paid out of the reserve account as provided above. Seller further agrees to indemnify and hold Buyer, its officers, employees and consultants, assigns and successors in interest harmless from any and all liability, costs, and expenses (including reasonable attorneys ' fees and costs) , fines, penalties, charges and/or claims of any kind whatsoever relating to the existence and removal of said materials. The Developer hereby agrees to defend and hold the Agency and the City, and their respective offi.cers, employees, agents and consultants, harmless from any and all claims, liability and damages arising out of the entry by the Developer onto the Site and any work or activity of the Developer, its agents, or its employees thereon pursuant to this Section 4 . 3 . After the Agency conveys the Site to the Developer, the Developer hereby further agrees to defend and hold the Agency and the City, and their respective officers, employees, agents and consultants, harmless from any and all claims, liability, costs, fines, penalties, charges and/or claims of any kind whatsoever relating to the existence and removal of Hazardous Materials. 4 . 4 Agency' s Failure to Acquire Site; Developer Acquisition of Site. In the event the Agency is unable to acquire the Site by negotiation within the period of time is 227140 provided therefor in the Schedule of Performance and does not timely adopt a resolution of necessity, as reasonably determined by Developer, or in the event that Developer reasonably determines on the basis of the surveys, tests and inspections described in Section 4 . 3 hereof that the Site is not suitable for development in connection with the Project as provided in said Section 4 . 3 , or in the event any condemnation proceedings are terminated by the Developer as provided in Section 4 . 6 hereof, or in the event the Developer shall acquire the Site directly from the owner(s) thereof, whether such acquisition by the Developer should occur prior to or after the adoption of a resolution of necessity by the Agency and the filing of the Condemnation Complaint, then, at the sole option of the Developer, (i) the Agency' s obligation to acquire the Site and the Developer' s obligation to acquire the Site from the Agency shall terminate, and the provisions of this Agreement pertaining to the Site and the Site Development shall be deemed to have terminated and both parties shall be released of any further obligations or liabilities to one another with respect thereto, but all other terms and provisions of this Agreement shall remain in full force and effect, or (ii) this Agreement as a whole shall be terminated and both parties shall be released of any further obligations or liabilities to one another with respect to this Agreement. Notwithstanding the foregoing, the Developer shall not, in 19 227140 either event, be released from its obligations to pay for all Acquisition Costs, if any, incurred by the Agency prior to the date of such termination. 4 . 5 Purchase Price. The purchase price to be paid by the Developer to the Agency for the Site shall be equal to the Acquisition Costs. 4 . 6 Method of Financing the Acquisition of the Site. The Developer shall deposit with the Agency at least ten (10) days prior to the earlier to occur of (i) the Agency' s execution of a binding Purchase Agreement with the owner(s) of the Site or (ii) the submission by the Agency to the Developer of a written notice of the Agency' s consideration of a resolution of necessity (which notice shall be delivered not more than ten (10) days prior to the date of the first official action by the Agency with respect to such resolution of necessity) , an irrevocable letter of credit in the form attached hereto as Exhibit •K (the "Letter of Credit") . The Letter of Credit shall name the Agency as the beneficiary thereof, shall be in an initial stated amount of $635, 000, shall have a stated term of three (3) years unless otherwise extended or terminated pursuant to the terms thereof. The Letter of Credit shall be issued by one of the five largest banks in the State of California having a branch located in the City. The Agency may draw upon the Letter of Credit from time to time as provided herein solely to pay the Acquisition Costs. The Letter of 20 227140 Credit may be drawn upon by Agency only if (i) any such draw is for the specific purpose of paying Acquisition Costs as they are incurred or otherwise due and payable, and (ii) the Agency is not in default under this Agreement. The Agency shall contemporaneously with any such drawing provide written notice thereof to the Developer, with such written notice specifying the purpose, amount and date of such draw. The Letter of Credit may not be negotiated, assigned, pledged or hypothecated by the Agency, in whole or in part. With each draw of funds by Agency upon the Letter of Credit, the total available amount of the Letter of Credit shall be reduced by a sum equal to the Agency ' s draw. Upon the payment of all of the Acquisition Costs, or upon the termination of the Agency's proceedings for the acquisition of the Site as provided herein, the Agency shall promptly consent to the termination of the Letter of Credit and return the same to the Developer. The Agency shall on a reasonably periodic basis (but not less than quarterly) provide the Developer with written reports stating (1) the date any amount drawn on the Letter of Credit is applied against Acquisition Costs; (2) the status of the Agency' s negotiations with respect to acquisition of the Site; (3) the status of any eminent domain action filed with respect to the Site; and (4) a listing of the amount of all draws on the Letter of Credit within such period and the purposes of such draws. 21 227140 If at any time and from time to time subsequent to the receipt by the Agency of the Letter of Credit, the Agency shall determine that the amount of the Letter of Credit available for drawing is not sufficient to pay any remaining Acquisition Costs or that the expiration date of the Letter of Credit will precede the date upon which the Agency reasonably believes either the negotiations for the acquisition of the Site or any eminent domain proceedings with respect thereto will conclude, the Agency shall notify the Developer in writing of the additional funds required or the date to which the expiration date of the Letter of Credit must be extended in order for the Agency to proceed with the acquisition of the Site; provided, however, that any such notification with respect to an extension of the expiration date shall be delivered to the Developer at least sixty (60) days prior to the then existing expiration date and the date to which the expiration date shall be extended shall be at least six (6) months after the date of the then existing expiration date. Such notice shall describe the nature of remaining Acquisition Costs, estimate when funds will be needed to pay them and indicate the date which the Agency believes the negotiations or eminent domain proceedings will be concluded. The Developer shall , within thirty (30) days of receipt of such notice, either notify the Agency that the proceedings for the acquisition of the Site should be terminated, in which event the Agency shall 22 227140 immediately draw on the Letter of Credit for the amount of any Acquisition Costs previously incurred and not previously paid and the Letter of Credit shall thereafter be immediately returned to the Developer by the Agency, or cause the expiration date to be extended or the amount available for drawing under the Letter of Credit to be increased as provided in such notice. The Agency agrees that it shall undertake the acquisition of the Site in a manner so as to conserve the resources of the Letter of Credit and minimize the amount of the Acquisition Costs to the greatest extent feasible, consistent with applicable legal requirements. The Agency shall consult with Developer prior to the settlement of any acquisition and relocation disputes or litigation, and shall not settle such disputes or litigation without first receiving the written consent of the Developer which shall not be unreasonably withheld or delayed. 4 . 7 Escrow. The Developer and the Agency shall open an escrow to consummate the conveyance of the Site to Developer from Agency (the "Escrow") . The escrow shall be opened with Continental Land Title Insurance Company or such other escrow agent satisfactory to the parties (the "Escrow Agent") , in Riverside County within the time provided therefor in the Schedule of Performance. This Agreement constitutes the joint escrow instructions of the Agency and the Developer for the Escrow 23 227140 and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. The Agency and the Developer shall provide such additional escrow instructions as may be necessary or appropriate to enable the Escrow Agent to close escrow and comply with the terms of this Agreement. The Agency shall prepare and deliver to Escrow the Agency Deed. The Escrow Agent shall record the Agency Deed in accordance with these escrow instructions; provided that title can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix, and cancel any transfer stamps required by law. The Developer and the Agency agree to and shall deliver to Escrow Agent all documents necessary for the conveyance to Developer of title to the Site in conformity with, within the times, and in the manner provided in this Agreement. The Developer shall pay to the Escrow Agent all fees, charges, and costs required by the Escrow Agent to accomplish the foregoing, including all title insurance premiums, promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges, and costs, but not earlier than ten (10) days prior to the scheduled date of closing the escrow. Said fees, charges, and costs shall include the following: (a) The escrow fee; 24 227140 (b) The entire premium for the ALTA title insurance policy or policies insuring fee simple title to the Site in the amount of the Purchase Price; (c) Recording fees, if required by law; and (d) Notary fees; The Agency shall timely and properly execute, acknowledge and deliver the Agency Deed together with such other instruments of assignment or transfer as Developer may require to convey to the Developer title to the Site, and all tangible and intangible assets used in connection therewith, in accordance with the requirements of this Agreement, together with an estoppel certificate certifying that the Developer has completed all acts necessary to entitle the Developer to such conveyance, if such be the fact, and such other documents and materials as the Agency may have obtained from the owner(s) in connection with the Agency' s acquisition of the Site. The Escrow Agent is authorized to: (a) Pay the Agency and charge the Developer respectively, for any fees, charges and costs payable under this Section 4 . Before such payments are made, the Escrow Agent shall notify the Developer and the Agency of the fees, charges and costs necessary to clear title and close the Escrow. (b) Disburse funds and deliver the Agency Deed and other documents to the parties entitled thereto when the 25 227140 conditions of this Escrow has been fulfilled by the Developer and the Agency. Such funds shall not be disbursed or delivered by the Escrow Agent unless and until it has recorded the Agency Deed and has delivered to Developer a title insurance policy conforming to the requirements of Section 4 . 1. (c) Record any instruments delivered through this Escrow if necessary or proper to vest title in the Developer in accordance with the terms and provisions of this Agreement. All funds received in the Escrow shall be deposited by the Escrow Agent with other escrow funds of the Escrow Agent in a general escrow account or accounts with any state or national bank approved by Developer and doing business in the State of California. Such funds may be transferred to any other such general escrow account or accounts with Developer' s prior written approval. Escrow shall close and title to the Site shall be conveyed to the Developer in accordance with the Schedule of Performance. If escrow is not in a condition to permit conveyance by the time therefor established in the Schedule of Performance, either party not in default may demand in writing the return of its money or documents from the Escrow Agent. Upon such demand, Escrow Agent shall notify the other party. If objections are raised in written notice to Escrow Agent within ten (10) days after notice is given to 26 22'7140 the other party, Escrow Agent shall hold all money and documents until otherwise instructed by mutual agreement of the parties or by a court of competent jurisdiction. If no such demand is made, Escrow shall be closed as soon as possible thereafter. Any amendment to these escrow instructions shall be in writing and signed by both the Developer and the Agency. At the time of any such amendment the Escrow Agent shall agree to carry out its duties as Escrow Agent under and pursuant to these instructions as so amended. All communications from Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner provided in Section 9. 1 for notices, demands, and communications. The liability of the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Sections 4 . 7 to 4 . 15, inclusive, of this Agreement. 4 . 8 Conveyance of Title and Delivery of Possession. Subject to any mutually agreed upon extensions of time, which shall not be unreasonably withheld, the Agency shall convey to the Developer title to the Site, or possession of the Site as provided in Section 4 . 11 of this Agreement, within the time provided therefor in the Schedule of Performance. Agency and Developer shall perform all acts 27 227140 which are reasonably necessary to accomplish the conveyance of title or possession within the time therefor provided in the Schedule of Performance. Possession of the Site shall be delivered to the Developer concurrently with the conveyance of title, except that possession may be transferred to the Developer prior to the conveyance of title as provided in Section 4 . 11. The Developer shall accept such title and possession upon tender thereof by the Agency in accordance with the terms of this Agreement. 4 . 9 Form of Deed. The Agency shall convey to the Developer title to the Site in the condition provided in Sections 4 . 10 or 4 . 11 of this Agreement by the Agency Deed consistent with the terms, covenants and conditions of this Agreement. 4 . 10 Condition of Title. The Agency shall convey to the Developer fee simple title to the Site free and clear of all liens, encumbrances, assessments, easements, leases, taxes, covenants, conditions, restrictions or other defects or exceptions except as are set forth in the Schedule of Permitted Exceptions attached hereto as Exhibit L. Title to the Site shall be subject to the covenants, conditions and restrictions set forth in this Agreement. 4 . 11 Order of Immediate Possession. If, at or prior to the time provided in the Schedule of Performance 28 227140 for conveyance of the Site, the Agency has not obtained title to the Site, but has obtained a judicial order authorizing the Agency to take possession thereof (and thereafter obtains possession thereof) , the Agency may deposit a copy of the order and the Agency Deed based on such order into escrow. Notwithstanding the provisions of this Agreement requiring the Agency to use its best efforts to acquire title to the Site prior to the time provided for conveyance of such title in the Schedule of Performance and to deposit the Agency Deed for the Site into escrow prior to such time, if the Agency has so deposited said order and deed and, (i) the Agency delivers exclusive possession of the Site to the Developer free from the use or possession of any third party by a deed or other instrument reasonably approved as a means of effectuating this Agreement by the Agency and Developer, on or prior to the time set for conveyance thereof, and (ii) the right of possession which the Developer acquires from the Agency is such that the Title Company (as defined in Section 4 . 13) will irrevocably commit to issue a policy or policies of title insurance insuring title to the Site and satisfying the requirements of Section 4 . 10. , and (iii) the Developer determines in the exercise of its reasonable business judgement that it will be able to secure market rate financing for the development of the Site on the basis of said title insurance policy or policies; and (iv) the Agency agrees in writing to the 29 227140 Developer to diligently proceed with the eminent domain action until a final judgement is rendered, and the Agency and the Developer agree that based upon the facts and circumstances that are known to them said judgment will authorize the taking, and (v) all occupants have been removed from the Site; then the Developer (i) shall not exercise any right it may otherwise have to terminate the provisions of this Agreement with respect to the acquisition of the Site and shall accept such possession and the Escrow shall remain open until the Agency Deed is deposited therein in accordance with Section 4 . 7, and (ii) shall not thereafter request that the Agency abandon any eminent domain proceeding with respect to the Site, and (iii) shall thereafter provide for the payment of all Acquisition Costs thereafter incurred by the Agency with respect to such eminent domain proceedings. Agency hereby agrees to provide all reasonably necessary and appropriate indemnities and other assurances to the Title Company to effect the issuance of a title policy satisfying the requirements of Section 4 . 13 after the issuance of the order of prejudgment possession. All such indemnities and assurances shall be reasonably satisfactory to Developer. 4 . 12 Time and Place for Delivery of Agency Deed and Recordation Thereof. Subject to any mutually agreed upon extension of time, the Agency shall deposit the Agency 30 22'7140 Deed with the Escrow Agent on or before the date established as the date of conveyance of the Site pursuant to the Schedule of Performance. Prior to the delivery of the Agency Deed to Developer, the Escrow Agent shall file the Agency Deed for recordation among the land records in the office of the County Recorder for Riverside County, California. 4 . 13 Title Insurance. Prior to recordation of the Agency Deed conveying title to the Site, Continental Land Title Insurance Company or such other title insurance company satisfactory to the Developer and the Agency ("Title Company") shall provide and deliver to the Developer its irrevocable commitment to issue its ALTA form B-1970 owner' s extended coverage title insurance policy (in such form and with such endorsements as may be required by Developer in its sole and absolute discretion) issued by the Title Company insuring that the title to the Site is vested in the Developer, in the condition required by Section 4 . 10 of this Agreement. The title insurance policy shall be in the amount of the purchase price for the Site or in such greater amount as the Developer may specify as hereinafter provided. The Developer shall pay for all premiums with respect to title insurance including those for any extended coverage or special endorsements which it may request. 4 . 14 Taxes and Assessments. As between the Agency and the Developer, ad valorem taxes and assessments, if any, 31 227140 on the Site or any part thereof or interest therein after conveyance of the Site to Developer, shall be paid by the Developer and any of same levied, assessed or imposed for any period prior to such conveyance shall be paid by the Agency as an Acquisition Cost. 4 . 15 Conveyance Free of Possession. The Site shall be conveyed free of any possession or right of possession of any person except that of Developer, unless waived by Developer in writing. 4 . 16 Zoning of the Site. The zoning of the Site at the time of conveyance to the Developer shall be such as to permit development of the Site and the construction of proposed improvements thereon in accordance with the provisions of this Agreement, and the use, operation and maintenance of such improvements. The Agency agrees to provide all reasonable assistance to and cooperation with the Developer to obtain all specific plan, zoning and land use approvals from the City with respect to the Site. 5. Site Development. 5. 1 Agreement to Develop Site. Subject to Section 9 . 4 below, Developer agrees to develop and construct the Site Development in accordance with the Scope of Development and the Schedule of Performance, and any and all plans, drawings, and related documents submitted to and approved by the City in connection with the phased development and construction of Site Area 2 of the Property 32 22'7140 (as described in Exhibit B) in accordance with the Land Use Development Plan (as defined in the Development Agreement) and the Development Agreement (collectively, the "Plans") . The Developer shall submit to the Agency a copy of all Plans pertaining to the Site Development- contemporaneously with any such submission to the City. The Agency shall have the right to review the Plans for the purpose of determining that the Site Development will be developed in a manner consistent with the goals and policies of the Redevelopment Plan; provided, however, that (1) the Agency shall be deemed to have approved any Plans if it fails to respond in writing to the Developer' s submission thereof within twenty (20) business days after such submission; and (2) the Agency shall not unreasonably withhold or delay its approval , and shall not withhold or delay its approval in any event if either (a) all necessary discretionary approvals, consents, and entitlements have been obtained by Developer from the City with respect to the matter to be approved by the Agency; or (b) the Plans submitted are a logical evolution or progression of and not in conflict with the Scope of Development or the Plans theretofore approved by the Agency. Any disapproval by the Agency shall state in writing in reasonable detail the reasons for disapproval and the changes which the Agency requests to be made. Such reasons and such changes must be consistent with the Scope of Development and any items previously approved or deemed 33 22'7140 approved hereunder. The Agency agrees that it will not impose any condition upon the development of the Site Development or require any modification of the Plans which will conflict with any City requirement applicable to the development of the Site. Once any submission is approved or deemed approved by the Agency, the same shall be deemed to be in accordance with the Redevelopment Plan and shall not be subsequently disapproved. The Agency specifically agrees and acknowledges that the Scope of Development and the Schedule of the Performance apply only to the design, development, and construction of the Site Development and the Public Improvements and not the design development and construction of the remainder of the Project, which will be governed exclusively by the Development Agreement. 5 . 2 Cost of Construction; Reporting to Agency. The Developer shall be responsible for all costs of developing and constructing the Site Development and constructing all improvements thereon and related thereto. During periods of construction, the Developer shall submit to the Agency a written report of the progress of the construction when and as reasonably requested by the Agency (but not more frequently than quarterly) . The report shall be in such form and detail as may be reasonably required by the Agency. 34 22'7140 5. 3 Phasing of Site Development. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which Project phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereby acknowledge and expressly agree that the Project shall be developed in phases in accordance with the Development Agreement. The Minimum Development Requirements set forth in Paragraph B of the Scope of Development describe those improvements which the Developer is-required by this Agreement to develop in connection with the Site Development (the "Site Improvements") . Developer agrees to cause the Site Improvements to be designed, developed, and constructed as set forth in the Scope of Development, the Schedule of Performance, and such Plans relating thereto as may be approved by the Agency or the City, as applicable, in accordance with this Section 5. Those improvements associated with the Site Development and described in Paragraph C of the Scope of Development shall be designed, developed and constructed by Developer in conjunction with the phased development and construction of the Project as provided in the Development Agreement and shall be subject only to the provisions of the Development Agreement. 35 227140 The Agency agrees that it shall use its best efforts to facilitate the development of the Site Development and to the extent it reasonably has the ability to do so shall perform such actions as necessary or appropriate to provide Developer with reasonable access and means to complete any offsite improvements associated with the Site Development, including, without limitation, providing such easements, rights of way, ingress and egress as may be necessary or appropriate to the development and construction of such site improvements. 5. 4 Indemnification During Construction; Bodily Injury and Property Damage Insurance. During the period commencing with any preliminary work by Developer on or with regard to the Site Development (or if none then upon the conveyance of the Site to the Developer) , and ending on such date as the Agency is required to issue a Certificate of Completion (as defined in Section 5 . 15) with respect to the construction of the Site Improvements, the Developer agrees to and shall defend, indemnify and hold the Agency and the City and their respective officers, employees, contractors and agents harmless from and against all liability, loss, damage, costs, or expenses (including reasonable attorney ' s fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall occur directly or indirectly as a result 36 227140 of this Agreement, and which shall be directly or indirectly caused by any negligent or wrongful errors or omissions of the Developer or its agents, servants, employees, or contractors with respect to the development and construction of the Site Development. The Developer shall not be responsible for, and such indemnity shall not apply to, any acts, errors, or omissions (or breach of this Agreement) of the Agency or the City or their respective agents, servants, employees, or contractors. During the period commencing with any preliminary work by Developer on or with regard to the Site Development (or if none then upon the conveyance of the Site to the Developer) , and ending on such date as the Agency is required to issue a Certificate of Completion with respect to the construction of Site Improvements, the Developer shall furnish or cause to be furnished to the Agency, duplicate originals or appropriate certificates of insurance evidencing insurance issued by insurance carriers rated at least BXII plus in Best's Insurance Guide and naming the City as an additional insured party as follows: A. Comprehensive general liability (bodily injury and property damage) , blanket contractual liability, and personal injury liability, all with limits of not less than $1, 000, 000 and a combined single limit per occurrence basis. 37 22'7140 B. Endorsements shall be obtained for the policies providing the above insurance for the following three provisions: 1. Additional named insureds: "The Palm Desert Redevelopment Agency, the City of Palm. Desert, their respective elective and appointive boards, officers, agents and employees are added as additional named insureds with respect to this subject project and contract with the Agency.." 2 . Notice: "Said policy shall not terminate nor shall it be cancelled or the coverage reduced until after thirty (30) days written notice is given to the Palm Desert Redevelopment Agency. " 3 . Primary coverage: "Said policy and coverage as is afforded to the Palm Desert Redevelopment Agency and the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees shall be primary insurance and not contributing with any other insurance maintained by the Palm Desert Redevelopment Agency or the City of Palm Desert. " 5. 5 Antidiscrimination During Construction. The Developer for itself and its successors and assigns agrees that in the construction of the improvements with respect to the Site Development provided for in this Agreement, the 38 22'714U Developer will not discriminate against any employee or applicant for employment because of sex, martial status, race, color, creed, religion, national origin, or ancestry. 5. 6 Local, State, and Federal Laws. The Developer shall carry out the construction of the improvements with respect to the Site Development in conformity with all applicable laws, including all applicable Federal and State of California labor standards. The Agency represents that the United States is not a party to any contract at this time regarding the construction or development of the Site Development, and that such construction is not at this time financed, in whole or in part by loans or grants from the United States. 5.7 City and Other Governmental Agency Permits. Before commencement of construction or development of any buildings, structures or other work of improvement upon or with respect to any portion of the Site Development, the Developer shall, at its own expense, secure or cause to be secured, any and all permits which may be required by the City or any other governmental agency having jurisdiction over such construction, development or work. The Agency shall provide all reasonable assistance to the Developer in securing such permits. 5. 8 Rights of Access. Representatives of the Agency shall have the reasonable right of access to the Site or any part thereof without charges or fees, at normal 39 22'7140 construction hours during the period of construction for purposes of determining compliance with plans approved under this Agreement, or the provisions of the Redevelopment Plan, including, but not limited to, the inspection of the work being performed in constructing the Site Development and the Developer shall, upon receipt of written request from the Agency, make appropriate representatives available at the Site during the course of such inspections by the Agency. Such representatives of the Agency shall be those who are so identified in writing by the Executive Director of the Agency. Such Agency representatives shall have access to the Site only when accompanied by a representative of Developer and only if such represebtative(s) have been previously identified to Developer in writing. Agency shall indemnify and hold the Developer harmless from any claims, liabilities, cost and expenses (including reasonable attorney's fees and costs) resulting directly or indirectly from any wilful or negligent acts of Agency or its representatives arising from such entry. 5. 9 Taxes, Assessments, Encumbrances and Liens. The Developer shall pay before delinquency all real estate taxes and assessments assessed and levied on or against the Site and each portion thereof subsequent to the conveyance of the title or possession by Agency. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amount of any tax assessment, 40 227140 encumbrance or lien, nor to limit the remedies available to the Developer in respect thereto, provided, however that the Developer timely pays all such taxes and assessments on a timely basis. 5. 10 Prohibition Against Transfer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers or shall assume or be encumbered by any obligations or duties under this Agreement with respect to the Site except as expressly set forth herein. Prior to the date the Agency is required to issue the Certificate of Completion as defined in Section 5 . 15 hereof, the Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to the Site or delegate or transfer or attempt to delegate or transfer any obligations or duties of the Developer hereunder with respect to the Site, nor make any total or partial sale, transfer, conveyance, sale, ground lease or assignment of the whole or any part of the Site or the improvements thereon without prior written approval of the Agency, which approval shall not be unreasonably withheld or delayed. This prohibition shall not apply to the following: (a) any mortgage, deed of trust, sale and leaseback or other form of conveyance or encumbrance for financing (collectively, "Mortgage") for the purpose of securing loans 41 227140 of funds to be used for financing the direct and indirect costs (including, without limitation, financing costs, interest and commissions, and the refinancing of any equity investment by Developer) of acquiring, designing, constructing, developing, leasing and operating the Site and improvements to be constructed on the Site or any portion thereof pursuant to this Agreement, including permanent take-out loans placed on the Site prior to completion of construction, and any collateral assignment of this Agreement to the holder of any Mortgage; (b) the sale or conveyance of the Site or any portion thereof (i) to the mortgagee under the Mortgage or to any other person or entity acquiring the Site at a foreclosure sale or by deed in lieu of foreclosure (a "Mortgagee") ; and (ii) following foreclosure or acquisition by deed in lieu of foreclosure, by the Mortgagee to any third party (as used herein "Mortgage" includes all commercially reasonable modes of financing real estate acquisition, construction, or land development) ; (c) the sale, ground leasing or transfer of any portion of the Site to any tenant occupying at least (20, 000) square feet of gross leaseable area in the Project ("Major") , provided such Major is an experienced retailer which generally acquires sites in retail centers for the purposes of erecting, constructing, maintaining and operating (or causing to be erected, constructing, 42 227140 maintained and operated) retail stores, and further provided that such Major' s use or proposed use of the Site or the improvements thereon is consistent with the Scope of Development or is otherwise designated on Plans approved by the Agency pursuant to this Agreement; (d) the conveyance or dedication of any portion of the Site to the City, Agency, or other appropriate governmental agency, or the granting of easements or permits to facilitate the development of the Site or the leasing of space for occupancy on the Site; (e) the sale, ground leasing, or leasing of any portion of the Site or improvements thereon for development pads approved as such by Agency on Plans approved by Agency under this Agreement; provided that said sale, ground lease or lease shall not relieve Developer of its obligations hereunder with respect to the Site; (f) the conveyance of all of the Developer' s right, title, and interest in the Site to a joint venture or partnership in which the Developer is a general partner, or a corporation owned or controlled by, owning or controlling, or in common ownership or control with Developer (a "Developer Affiliate") , and the subsequent transfer and conveyance by such Developer Affiliate of legal , equitable, or beneficial ownership interests in such entity; provided, however, that Ahmanson Commercial Development Company or a parent, subsidiary, or affiliate thereof shall not be 43 227140 relieved of any obligations or duties under this Agreement with respect to the Site in the event of such conveyance and shall guarantee the full performance of said Developer Affiliate unless the Agency shall have otherwise consented to such transfer or conveyance in writing, which consent shall not be unreasonably withheld or delayed; and (g) the assignment by the Developer of any of its rights herein with respect to the Site and (unless otherwise expressly prohibited in this Section 5. 10) the delegation or the transfer by the Developer of any of its obligations or duties hereunder with respect to the Site made in connection with any of the sales, leases, transfers or conveyances described above; provided that any such rights may be assigned and such duties or obligations may be transferred or delegated only upon delivery of written notice by the Developer to the Agency at least ten (10) days prior thereto, which notice shall specify the rights to be assigned or the duties or obligations to be delegated or transferred, and such purchaser, lessee, or transferee shall provide a written notice to the Agency specifying which duties or obligations are to be assumed. The Agency shall take all actions reasonably necessary to accomplish the assignment, transfer or delegation of any such rights or interests and such duties or obligations of the Developer in the Site. 44 227140 5. 11 Security Financing; Right of Holders; Holder Not Obligated to Construct. The holder of any Mortgage authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the Site Development or to guarantee such construction or completion; nor shall any covenant or any other provision in a deed for all or any portion of the Site be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit, or authorize any such holder to devote the Site to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. Notwithstanding the foregoing, in the event a Mortgagee acquires the Site upon foreclosure of a Mortgage (or by deed in lieu of foreclosure) it may elect to assume the Developer' s obligations under this Agreement with respect to the Site by entering into a written assumption agreement reasonably satisfactory to the Agency (the "Assumption Agreement") . Such Assumption Agreement shall provide that said Mortgagee shall agree to complete, or cause to be completed, the Site Development in the manner provided in this Agreement, and upon such completion shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency in accordance with Section 5 . 15 below. Notwithstanding the foregoing, the Developer shall 45 227140 promptly notify the Agency in writing of the name and address of each and every holder of any Mortgage applicable to the Site. 5. 12 Notice of Default to Mortgagees, Beneficiaries of Deeds of Trust or Other Security Interest Holders; Right to Cure; Limited Liability. Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer under this Agreement with respect to the Site, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any Mortgage. The Agency will cooperate with any construction or permanent lender to the extent reasonably necessary to modify the provisions of this Section 5. 12 (and any other provisions of this Agreement relating to lender' s security and their rights and remedies) to meet the requirements of such lender. Each such lender shall (insofar as the rights of the Agency are concerned) have the right at its option within sixty (60) days after the receipt of the aforesaid notice to cure or remedy any such default and to add the cost thereof to the security interest debt and the lien on its security interest. If such default shall be a default which can only be remedied or cured by such holder upon foreclosure or appointment of a receiver, such holder shall exercise appropriate remedies under the Mortgage with diligence and continuity through foreclosure or the 46 227140 appointment of a receiver or otherwise, and the Mortgagee shall remedy or cure such default within ninety (90) days thereafter, provided that in the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced, within such ninety (90) day period, such Mortgagee shall have such additional time as is necessary to remedy or cure such default of the Developer, and if such default is incurable, the Agency shall be deemed to waive such default provided such Mortgagee has diligently attempted to cure or remedy all curable or remediable defaults. The Agency shall not agree with Developer to any termination of this Agreement with respect to the Site except as expressly provided under the terms of this Agreement, and shall not consent to any material amendment or modification hereof with respect to the Site without the prior written consent of the Mortgagee, which shall not be unreasonably withheld. In the event a Mortgagee acquires the Site through foreclosure of a Mortgage (or by deed in lieu of foreclosure) , such Mortgagee shall be personally liable for the obligations of Developer under this Agreement with respect to the Site only for the period of time that such Mortgagee is the owner of the Site and only to the extent expressly provided for in this Agreement. In the event such Mortgagee subsequently assigns or transfers its interest in the Site in accordance with this Agreement, or if in 47 connection with any such assignment or transfer such Mortgagee takes back a mortgage or deed of trust encumbering the Site to secure a portion of the purchase price given to such Mortgagee for such assignment or transfer, then such Mortgagee shall nevertheless be relieved of any liability under this Agreement to the same extent provided for above, and such purchase money mortgage or deed of trust shall be considered a mortgage as contemplated under this Agreement. 5 . 13 Right of Agency to Cure Mortgage, Deed of Trust, or Other Security Interest Default. In the event of a default or breach by the Developer of a Mortgage, deed of trust or other security interest with respect .to the Site (or any portion thereof) prior to the issuance of a Certificate of Completion by the Agency, and the holder has not exercised its option to complete the development of the Site Development in accordance with this Agreement, the Agency may cure the default prior to completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement from the Developer of all reasonable costs and expenses incurred by the Agency in curing the default. 5. 14 Right of the Agency to Satisfy Other Liens on the Property After Title Passes. Prior to the recordation of the Certificate of Completion, and after the Developer has had a reasonable time to challenge, cure or satisfy any unpermitted liens or encumbrances -on the Site (or any portion thereof) , the Agency shall have the right to satisfy 48 227140 any such liens on encumbrances; provided, however, that nothing in this Agreement shall require the Developer to pay or make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Site (or any portion thereof) to forfeiture or sale. 5. 15 Certificate of Completion. Promptly after substantial completion of the Site Improvements set forth in the attached Scope of Development,, the Agency shall furnish the Developer with a certificate of completion (the "Certificate of Completion") . As used in this Agreement, "substantial completion" shall mean the date certified by the architect for the Project selected by the Developer (the "Project Architect") , and reasonably determined by the Agency, as the date when construction of the Site Improvements is sufficiently complete so that the improvements comprising said Site Improvements can be occupied or utilized for the use for which they are intended. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be, and shall state that it is, a conclusive determination of satisfactory completion of the construction and development required by this Agreement for the entire Site in full compliance with this Agreement and the Redevelopment Plan. 49 22'7140 The Certificate of Completion shall apply only to the completion of the Site Improvements as required in the Scope of Development and shall not pertain to the other Project-related improvements to be constructed by Developer on or with respect to the Site in accordance with the Development Agreement. The Certificate of Completion shall be in such form as to permit it to be recorded in the office of the Recorder of Riverside County. If the Agency refuses or fails to furnish a Certificate of Completion for the Site after written request from the Developer, the Agency shall, within thirty (30) days of the written request, provide the Developer with a written statement which details the reasons the Agency refused or failed to furnish such Certificate. The statement shall also contain the Agency' s determination of the action the Developer must take to obtain such Certificate. If the reason for such refusal is confined to the immediate unavailability of specific items or other "punch list" items, Agency shall issue the Certificate of Completion, upon Developer posting a bond with Agency in an amount equal to the reasonable cost of the work not yet completed. If no written statement is delivered within said thirty (30) day period, Developer shall be deemed entitled to the Certificate of Completion. 50 22'7140 The Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a Mortgage, or any insurer of a Mortgage securing money loaned to finance the improvements, nor any part thereof. The Certificate of Completion is not notice of completion as referred to in Section 3093 of the California Civil Code. 6. USE OF THE SITE. 6. 1 Uses. The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that during construction and thereafter, until the applicable date set forth in Section 8. 1, the Developer its successors and assigns shall develop and devote the Site to the uses specified in the Scope of Development, the Agency Deed, this Section 6. 1 and all plans approved by the Agency pursuant to this Agreement. 6. 2 Maintenance of the Site. At no expense to the Agency, the Developer shall, until the applicable date set forth in Section 8 . 1, maintain the Site Improvements in a first-class condition, consistent with other regional commercial centers of comparable size in Southern California, to the extent that they have remained intact or have been constructed or developed pursuant to this 51 2217140 Agreement. Developer shall keep the Site reasonably free from any accumulation of debris or waste materials (subject to normal job site conditions) . The Developer shall also, until the applicable date set forth in Section 8 . 1, maintain in a healthy condition the landscaping improvements required under the Scope of Development. 6. 3 Obligation to Refrain From Discrimination. The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees of the Site. In the event that any proceedings are commenced against Developer, any Major or any tenant of the Project alleging that Developer, such Major or tenant has committed an act prohibited by this Section, then provided Developer, such Major or tenant fully complies with all directives of the governmental authority asserting 52 227140 jurisdiction in such proceedings, or upon settlement of any private action, or if any such proceedings are dismissed, such compliance, settlement or dismissal shall constitute substitute performance by Developer, such Major or tenant, of its obligations under this Section 6 . 3 6. 4 Form of Nondiscrimination and Nonsegregation Clauses. The Developer shall refrain from restricting the rental , sale or lease of the Site on the basis of sex, marital status, race, color, creed, religion, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation .clauses: 1. In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " 2 . In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: 53 22'7140 That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the leasing, subleasing, renting, transferring; use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessee, subtenants, or vendees in the land herein leased. " 3 . In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices or discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees of the land. " 7 . Construction of Public Improvements. 7 . 1 Agreement to Construct Public Improvements. Subject to Section 9 . 4 below, Developer agrees to develop and construct the Public Improvements in accordance with the Scope of Development and the Schedule of Performance, and any and all plans, drawings, and related documents submitted to and approved by the City in connection with "the phased development and construction of Site Area 5 of the Project in accordance with the Land Use Development Plan (as defined in the Development Agreement) and the Development Agreement 54 227140 (collectively, the "Public Improvement Plans") . The Developer shall submit to the Agency a copy of all Public Improvement Plans contemporaneously with any such submission to the City. The Agency shall have the right to review the Public Improvement Plans for the purpose of determining that the Public Improvements will be constructed in a manner consistent with the goals and policies of the Redevelopment Plan; provided, however, that (1) the Agency shall be deemed to have approved any Public Improvement Plans if it fails to respond in writing to the Developer' s submission thereof within twenty (20) business days after such submission; and (2) the Agency shall not unreasonably withhold or delay its approval , and shall not withhold or delay its approval in any event if either (a) all necessary discretionary approvals, consents, and entitlements have been obtained by Developer from the City with respect to the matter to be approved by the Agency or (b) the Public Improvement Plans submitted are a logical evolution or progression of and not in conflict with the Scope of Development or the Public Improvement Plans theretofore approved by the Agency. Any disapproval by the Agency shall state in writing in reasonable detail the reasons for disapproval and the changes which the Agency requests to be made. Such reasons and such changes must be consistent with the Scope of Development and any items previously approved or deemed approved hereunder. The Agency agrees that it will not 55 227140 impose any condition upon the construction of the Public Improvements or require any modification of the Public Improvement Plans which will conflict with any City requirement applicable to the construction of the Public Improvements. Once any submission is approved or deemed approved by the Agency, the same shall be deemed to be in accordance with the Redevelopment Plan and in compliance with the provisions of this Agreement and shall not be subsequently disapproved. 7 . 2 Cost of Construction; Reporting to Agency. The Developer shall be responsible for all costs of developing and constructing the Public Improvements; provided, however, that Developer shall be entitled to receive reimbursement from the Agency for certain costs of developing and constructing the Public Improvements as provided in Section 7 . 4 hereof. During periods of construction, the Developer shall submit to the Agency a written report of the progress of the construction when and as reasonably requested by the Agency (but not more frequently than quarterly) . The report shall be in such form and detail as may be reasonably required by the Agency. 7 . 3 Construction of Public Improvements. The Developer agrees that to the extent required by law, all contracts for the construction of the Public Improvements shall be let in conformance with the public bidding 56 227140 procedures and the requirements of the payment for prevailing wages applicable to similar contracts let by the Agency. The Agency agrees that it shall use its best efforts to facilitate the construction of the Public Improvements. 7 . 4 Agency Reimbursement; Pledge of Tax Increment. As reimbursement for the costs of the Public Improvements described in Paragraph 2 of Exhibit "H" and incurred by the Developer pursuant to Section 7 . 2 above, the Agency hereby irrevocably pledges as of the Effective Date and shall pay to the Developer, as hereinafter provided, beginning on the date on which the Final Public Improvement Certificate of Completion (as defined in Section 7 . 12 hereof) has been issued by the Agency with respect to the Public Improvements described in Paragraph 2 of Exhibit "H" (the "Reimbursement Date") , and thereafter as herein provided, Original Territory Available Property Tax Increment (as hereinafter defined) and Added Territory Available Property Tax Increment (as hereinafter defined) , provided (i) that the aggregate of such amounts shall not exceed the amount of the Public Improvement Reimbursable Costs (as hereinafter defined) then incurred by Developer and interest accrued on such amounts as hereinafter provided for and (ii) that the aggregate amount of such Original Territory Available Property Tax Increment and Added Territory Available 57 227140 Property Tax Increment paid to the Developer in reimbursement of the Public Improvement Reimbursable Costs incurred by the Developer and interest thereon shall in no event exceed in the aggregate $5, 000, 000. The Original Territory Available Property Tax Increment and Added Territory Available Property Tax Increment pledged to and paid or payable to the Developer as herein provided is hereinafter referred to collectively as the "Reimbursable Tax Increment" . All Reimbursable Tax Increment received by the Agency after the Effective Date shall be held by the Agency in its special fund established pursuant to the Redevelopment Law for the sole benefit of the -Developer and shall be used for no other purposes of the Agency until it is dispersed to the Developer in the manner provided herein in full payment of the Public Improvement Reimbursable Costs. On and after the Reimbursement Date, the Agency shall, to the full extent that Reimbursable Tax Increment is available therefor, promptly pay upon receipt of a written request from Developer (a "Reimbursement Request") all Public Improvement Reimbursable Costs. The Reimbursement Request shall be signed by an authorized officer of the Developer and shall specify in reasonable detail the nature and amount of the Public Improvement Reimbursable Costs associated with such Public Improvements. The Reimbursement 58 227140 Request shall be subject to approval by the Agency, which approval shall not be unreasonably withheld or delayed. In the event and to the extent that the Developer is not promptly reimbursed by the Agency for any Public Improvement Reimbursable Costs following the Agency' s receipt of a Reimbursement Request with respect thereto, the Agency shall promptly execute and deliver to the Developer a promissory note of the Agency in the form of Exhibit N (the "Note") , dated the date of the Agency' s receipt of such Reimbursement Request, and in a principal amount equal to the amount of such unreimbursed Public Improvement Reimbursable Costs. Such Note shall be payable from the sole source of, and shall be secured solely by, Reimbursable Tax Increment. All payments by the Agency with respect to such Note shall first be applied to the payment of the principal amount thereof outstanding and then to the reduction of interest accrued on such Note, if any. In the event of a sale or transfer of Developer' s interest in Site Area 5 as permitted by the Development Agreement, Developer shall be entitled to reimbursement as herein provided with respect to all Public Improvement Reimbursable Costs incurred prior to the date of such transfer and any permitted transferee of Developer shall be entitled to reimbursement of any Public Improvement Reimbursable Costs incurred by such transferee after acquiring Site Area 5 in accordance with the Development 59 22`7140 Agreement. Agency agrees to cooperate with Developer and any such transferee in the event of any change of ownership of Site Area 5 by executing any documents reasonably requested in connection with such conveyance to document the rights of the parties to reimbursement in accordance with this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Agency' s obligation to reimburse Developer for the full amount of the Public Improvement Reimbursable Costs as provided herein shall constitute an indebtedness of the Agency within the meaning of the Redevelopment Law and the Redevelopment Plan, for which Reimbursable Tax Increment has been pledged by the Agency in payment thereof. Such obligations shall continue and remain in full force and effect until all such amounts are paid from Reimbursable Tax Increment, and such obligation shall survive any earlier expiration or termination of this Agreement. As used in this Agreement the following terms shall have the meanings set forth below: "Original Territory Available Property Tax Increment" shall mean for any year that portion of the Tax Increment (as hereinafter defined) from the Project Area which is produced as a result of the acquisition of the Property by the Developer or the development of the Project and which is attributable to the Original Territory located 60 227140 in the Project Area, which sum shall be net of only the following amounts: (A) the amount of such Tax Increment required to be set aside pursuant to California Health and Safety Code Sections 33334 . 2 , 33334 . 3 and 33334 . 6 for low and moderate income housing purposes (provided, however, that in any year the amount of Original Territory Available Property Tax Increment so set aside shall not exceed twenty two percent (22%) of the Original Territory Available Property Tax Increment attributable to such year) ; and (B) the amount of Tax Increment pledged to the payment of indebtedness incurred by the Agency with respect to the implementation of the Redevelopment Plan and outstanding as of the Effective Date. "Added Territory Available Property Tax Increment" shall mean for any year that portion of the Tax Increment from the Project Area which is produced as a result of the acquisition of the Property by the Developer or the development of the Project and which is attributable to the Added Territory located in the Project Area, which sum shall be net of the following amounts: (A) the amount of such Tax Increment required to be set aside pursuant to California Health and Safety Code Sections 33334 . 2 , 33334 . 3 and 33334 . 6 for low and moderate income housing purposes (provided, however, that in any year the amount of Added Territory Available Property Tax Increment so set aside shall not exceed twenty two percent (22%) of the Added Territory 61 227140 Available Property Tax Increment attributable to such year) ; (B) the amount of Tax Increment required to be paid to or for the benefit of taxing entities pursuant to agreements entered into between the Agency and such taxing entities and in effect prior to the Effective Date; and (C) the amount of Tax .Increment pledged to the payment of indebtedness incurred by the Agency with respect to the implementation of the Redevelopment Plan and outstanding as of the Effective Date. Notwithstanding anything to the contrary contained herein, Tax Increment attributable to the Added Territory will not constitute Added Territory Available Property Tax Increment until such time as the Redevelopment Plan may be amended to permit such Tax Increment to be used by the Agency to finance costs of redevelopment in the nature of the Public Improvements. "Tax Increment" shall mean those property tax revenues which are to be allocated to and paid into the special fund of the Agency pursuant to Health and Safety Code. Section 33670 (b) and the Redevelopment Plan. "Public Improvement Reimbursable Costs" shall mean all costs, expenses and associated fees actually incurred by Developer prior to or after the Effective Date in connection with the design, planning, development and construction of 62 227140 Agreement) of the Agency or the City or their respective agents, servants, employees, or contractors. During the period commencing upon the date of commencement of construction of the Public Improvements, and ending on such date as the Agency is required to issue the Final Public Improvements Certificate of Completion with respect to the construction of of the Public Improvements, the Developer shall furnish or cause to be furnished to the Agency, duplicate originals or appropriate certificates of insurance evidencing insurance issued by insurance carriers rated at least BXII plus in Best' s Insurance Guide and naming the City as an additional insured party as follows: A. Comprehensive general -liability (bodily injury and property damage) , blanket contractual liability, and personal injury liability, all with limits of not less than $1, 000, 000 and a combined single limit per occurrence basis. B. Endorsements shall be obtained for the policies providing the above insurance for the following three provisions: 1. Additional named insureds: "The Palm Desert Redevelopment Agency, the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees are added as additional named insureds with respect to this subject project and contract with the Agency. " 64 227140 2 . Notice: "Said policy shall not terminate nor shall it be cancelled or the coverage reduced until after thirty (30) days written notice is given to the Palm Desert Redevelopment Agency. " 3 . Primary coverage: "Said policy and coverage as is afforded to the Palm Desert Redevelopment Agency and the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees shall be primary insurance and not contributing with any other insurance maintained by the Palm Desert Redevelopment Agency or the City of Palm Desert. " 7 . 6 Antidiscrimination During Construction. The Developer for itself and its successors and assigns agrees that in the construction of the Public Improvements, the Developer will not discriminate against any employee or applicant for employment because of sex, martial status, race, color, creed, religion, national origin, or ancestry. 7 .7 Local, State, and Federal Laws. The Developer shall carry out the construction of the Public Improvements in conformity with all applicable laws, including all applicable Federal and State of California labor standards. The Agency represents that the United States is not a party to any contract at this time regarding the construction of 65 22 !14( the Public Improvements, and that such construction is not at this time financed, in whole or in part by loans or grants from the United States. 7 . 8 City and Other Governmental Agency Permits. Before commencement of construction of the Public Improvements, the Developer shall, at its own expense, secure or cause to be secured any and all permits which may be required by the City or any other governmental agency having jurisdiction over such construction. The Agency shall provide all reasonable assistance to the Developer in securing such permits. 7 . 9 Rights of Access. Representatives of the Agency shall have the reasonable right of access to Site Area 5 or any part thereof without charges or fees, at normal construction hours during the period of construction of the Public Improvements for purposes of determining compliance with plans approved under this Agreement, or the provisions of the Redevelopment Plan, including, but not limited to, the inspection of the work being performed in constructing the Public Improvements and the Developer shall, upon receipt of written request from the Agency, make appropriate representatives available at the Site during the course of such inspections by the Agency. Such representatives of the Agency shall be those who are so identified in writing by the Executive Director of the Agency. Such Agency representatives shall have access to 66 2271,10 Site Area 5 only when accompanied by a representative of Developer and only if such representative(s) have been previously identified to Developer in writing. Agency shall indemnify and hold the Developer harmless from any claims, liabilities, cost and expenses (including reasonable attorney' s fees and costs) resulting directly or indirectly from any wilful or negligent acts of Agency or its representatives arising from such entry. 7 . 10 Prohibition Against Transfer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights under this Agreement with respect to the reimbursement by the Agency of Public Improvement Reimbursable Costs or assume, or be deemed to have assumed, any obligations or duties with respect to the construction of the Public Improvements except as expressly set forth herein. Prior to the date the Agency is required to issue the Final Public Improvement Certificate of Completion as defined in Section 7 . 12 hereof, the Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to the reimbursement by the Agency of Public Improvement Reimbursable Costs (including the Note representing such right of reimbursement) or delegate or transfer or attempt to delegate or transfer any obligations or duties of the Developer hereunder with respect to the construction of the 67 227140 Public Improvements, without prior written approval of the Agency, which approval shall not be unreasonably withheld or delayed. This prohibition shall not apply to the sale, transfer, assignment or conveyance of all or a portion of the Developer' s rights or interests in the reimbursement obligations of the Agency hereunder with respect to the Public Improvement Reimbursable Costs (including the Note) or the Developer' s obligations or duties with respect to the construction of the Public Improvements made in connection with any transfer of interest of the Developer in Site Area 5 of the Project in accordance with the provisions of the Development Agreement. Such rights and duties and obligations may not be sold, transferred, assigned, conveyed or delegated except in compliance with the following conditions: (a) At least ten (10) days prior to any such sale, transfer, assignment, conveyance or delegation, the Developer shall notify the Agency in writing of the rights (including the Note, if appropriate) or the duties or obligations to be sold, transferred assigned, conveyed or delegated and the name and address of the purchaser, transferee or assignee and the purchaser, transferee or assignee shall provide a written notice to the Agency specifying the duties or obligations to be assumed; and (b) with respect to the transfer of any such obligations or duties of the Developer, the Developer shall 68 22"7140 have received the prior written consent of the City as required by Section 10. 1 (ii) of the Development Agreement. The Agency shall take all actions reasonably necessary to accomplish the sale, transfer, assignment, conveyance or delegation of such rights and interests and such. duties and obligations as permitted pursuant to this Section 7 . 10, including, but not limited to, the execution and delivery of new Notes for the benefit of any such purchaser or transferee in substitution of any Note previously delivered to the Developer. 7- 11 Security Financing; Holder Not Obligated to Construct. The holder of any Mortgage with respect to Site Area 5 shall in no way be obligated by the provisions of this Agreement to construct or complete the Public Improvements or to guarantee such construction or completion unless such holder shall have expressly assumed such obligations as provided in Section 7 . 10 hereof. 7 . 12 Public Improvement Certificate of Completion; Final Public Improvement Certificate of Completion. Promptly after the granting of the easement described in Paragraph 1 of Exhibit "H" , the Agency shall furnish the Developer with a certificate of completion with respect thereto (the "Public Improvement Certificate of Completion") . The Agency shall not unreasonably withhold such Public Improvement Certificate of Completion. Such Public Improvement Certificate of Completion shall be, and 69 22'7140 shall state that it is, a conclusive determination of satisfactory establishment of the aforesaid easement in full compliance with this Agreement and the Redevelopment Plan. Promptly after substantial completion of the Public Improvements described in Paragraph 2 of Exhibit "H" , the Agency shall furnish to the Developer a final Public Improvement Certificate of Completion ("Final Public Improvement Certificate of Completion") , which shall be, and shall state that it is, a conclusive determination of satisfaction of all of the Developer' s obligations hereunder with respect to the Public Improvements in full compliance with this Agreement and the Redevelopment Plan. As used in this Agreement, "substantial completion" shall mean the date certified by the Project Architect, and reasonably determined by the Agency, as the date when construction of the subject Public Improvements is sufficiently complete so that they can be utilized for the use for which they are intended. The Agency shall not unreasonably withhold such Final Public Improvement Certificate of Completion. Such Final Public Improvement Certificate of Completion shall be, and shall state that it is, a conclusive determination of satisfactory completion of the construction of the Public Improvements to which it pertains in full compliance with this Agreement and the Redevelopment Plan. The Public Improvement Certificate of Completion and the Final Public Improvement Certificate of Completion 70 227140 shall be in such form as to permit each such Certificate to be recorded in the office of the Recorder of Riverside County. If the Agency refuses or fails to furnish a Public Improvement Certificate of Completion or a Final Public Improvement Certificate of Completion after written request from the Developer, the Agency shall, within thirty (30) days of the written request, provide the Developer with a written statement which details the reasons the Agency refused or failed to furnish such Certificate. The statement shall also contain the Agency' s determination of the action the Developer must take to obtain such Certificate. If the reason for such refusal is confined to the immediate unavailability of specific items or other "punch list" items, Agency shall issue the Certificate upon Developer posting a bond with Agency in an amount equal to the reasonable cost of the work not yet completed. If no written statement is delivered within said thirty (30) day period, Developer shall be deemed entitled to the Public Improvement Certificate of Completion and Final Public Improvement Certificate of Completion, as applicable. Such Certificates shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a Mortgage, or any insurer of a Mortgage securing money loaned to finance the Public 71 22'7140 Improvements, nor any part thereof. Such Certificates are not notice of completion as referred to in Section 3093 of the California Civil Code. 8 . DURATION OF COVENANTS; DEFAULTS, REMEDIES AND TERMINATION 8. 1 Effect and Duration of Covenants and Agreements. The covenants established in this Agreement with respect to the Site shall, without regard to technical classification, be binding upon the Developer and any successor in interest of the Developer to the Site for the benefit and in favor of the Agency, and its successors and assigns. After issuance of a Certificate of Completion with respect to the Site Improvements, all of the covenants, agreements or conditions in this Agreement pertaining to the Site shall cease and terminate, except that the provisions of Sections 6. 3 and 6. 4 shall survive in perpetuity. After the issuance of a Final Public Improvement Certificate of Completion, all of the covenants, agreements or conditions in this Agreement pertaining to the Public Improvements shall cease and terminate, except that the reimbursement obligations of the Agency under Section 7 . 4 , to the extent not then performed, shall survive.- 8 .2 Defaults. Subject to the extensions of time set forth in Section 9 . 4, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who 72 22'7140 fails or delays shall within the time periods set forth herein commence to cure and cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default. The Agency shall send copies of any such default notices to such persons and entities as Developer may designate pursuant to Section 9. 1. Except as otherwise expressly provided in this Agreement, any failures or delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. In the event Developer is released from its obligations hereunder as to any portion of the Site as expressly provided for in Section 5. 10, or its obligations with respect to the construction of the Public Improvements or expressly provided for in Section 7 . 10, a default by either Developer or the transferee of such portion of their respective obligations under this Agreement shall not constitute a default by the other for any purpose 73 227140 whatsoever, and Agency shall look solely to the defaulting party for the enforcement of its obligations under this Agreement. 8. 3 Institution of Legal Actions. After expiration of the applicable time periods set forth herein, in addition to any other rights or remedies, either party may institute legal or equitable (including specific performance) action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, in any other appropriate court of the County, or in the Federal District Court in the Central District of California. Without limitation on the right of either party to obtain equitable relief, in the event that either party is liable for damages to the other, such liability shall not exceed costs incurred by such other party in the performance of this Agreement and shall not extend to compensation for loss of future income, profits or assets. 8 .4 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 8. 5 Acceptance of Service of Process. In the event that any legal or equitable action is commenced by the Developer against the Agency, service of process on the 74 22'7140 Agency shall be made by personal service upon the Executive Director or Chairman of the Agency, or in such other manner as may be provided by law. In the event that any legal or equitable action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon an officer of the Developer, or in such manner as may be provided by law, and shall be valid whether made within or without the State of California. 8. 6 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same or different times, or any other rights or remedies for the same default or any other default by the other party. 8 . 7 Damages. If either party defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party shall be 75 22'7140 liable to the nondefaulting party for any damages caused by such default, and the nondefaulting party may thereafter (but not before) commence an action for damages against the defaulting party with respect to such default. During any applicable period for cure provided in this Agreement, such party shall not be deemed in default hereunder. 8 .8 Specific Performance. If either party defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement the nondefaulting party, at its option, may thereafter (but not before) commence an action for specific performance of the terms of this Agreement pertaining to such default. During any applicable period for cure provided in this Agreement such party shall not be deemed in default hereunder. 8. 9 Termination by Developer. In the event that the Agency does not tender either conveyance of title to the Site, or possession thereof, as as the case may be, to the Developer in the manner and condition, and before the date provided therefor in this Agreement, and any such failure shall not be cured within thirty (30) days after the date that written demand by Developer is received by the Agency, 76 22'7140 then (i) the provisions of this Agreement pertaining to the acquisition of the Site and the Site Development shall , at the option of the Developer be terminated by written notice thereof to the Agency, and all documents and funds deposited in escrow shall be returned to the party depositing same or (ii) this Agreement as a whole shall, at the option of the Developer be terminated by written notice thereof to the Agency. In either such event of termination, neither the Agency nor the Developer shall have any further rights or liabilities to the other under this Agreement with respect to the provisions of this Agreement so terminated; provided, however, that in either such event of termination the Agency' s reimbursement obligations under Section 7 . 4 above shall continue in full force and effect. The rights of termination under this section are not intended to be an exclusive remedy. 8 . 10 Termination by Agency. The Agency at its option may terminate this Agreement in the event that, prior to the conveyance of title or possession to the Site to the Developer: (i) the Developer fails to make available to the Agency the Letter of Credit in the amount, form, manner and time set forth in Section 4 . 6 of this Agreement; or (ii) the Developer fails to take title to the Site under a tender of conveyance by the Agency pursuant to and in conformance with the provisions of this Agreement. 77 227140 The rights of termination under this Section 8 . 10 are not intended to be an exclusive remedy. 9 . GENERAL PROVISIONS. 9 . 1 Notices, Demands, and Communications Between the Parties. Formal notices, demands, and communications between the Agency and the Developer shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, or by overnight courier or delivery service to the principal offices of the Agency and the Developer, as designated in this Section 9 . 1 . Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section 9. 1. Notices to Developer shall be sent to the attention of: 78 22 7140 AGENCY: THE PALM DESERT REDEVELOPMENT AGENCY 73-510 Fred Waring Drive Palm Desert, California 92260 ATTENTION: Carlos Ortega Assistant City Manager DEVELOPER: AHMANSON COMMERCIAL DEVELOPMENT COMPANY 11111 Santa Morrica Boulevard Suite 2127 Los Angeles, California 90025 ATTENTION: Gregory Simon with copies thereof to: MORRISON & FOERSTER 333 South Grand Avenue Suite 3800 Los Angeles, California 90071 Attention: Jim G. Grayson, Esq. 9 . 2 Conflicts of Interest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is, directly or indirectly, interested. Each party warrants to the other that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement 79 227140 other than normal costs of conducting business and costs for professional services such as attorneys, architects and engineers. 9 . 3 Nonliability of Agency Officials and Employees. No member, official, employee or consultant of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or its successor, or on any obligations under the terms of this Agreement (except by reason of willful, wanton misconduct or malfeasance in office) . 9 . 4 Enforced Delay; Extensions of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-outs, labor disputes, riots, floods, earthquakes, water shortages, fires, causalities, Acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation or court orders in connection therewith, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplier, acts of the other party, acts or failure to act of the city or any other public or 80 ' - 221140 governmental agency or entity (except that any act or failure to act of the Agency or City shall not excuse performance by the Agency) or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such. cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. Notice by the party claiming such extension shall be sent to the other party within thirty (30) days of knowledge of the commencement of the cause. Times of performance under this Agreement may also be extended by mutual agreement in writing between the Agency and the Developer. 9 . 5 Real Estate Commissions. Neither party shall be liable for any real estate commissions, brokerage fees or finders fees which may arise from the sale of any interest in the Site or any part thereof to Developer or the Developer' s acquisition of any interest in the Site or part thereof. Each party hereby agrees to indemnify and hold the other harmless against any such claims which may arise out of Developer's acquisition of the Site. Agency and Developer each represent that it has hired no broker or agent in connection with this project. 10. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and 81 227140 supersedes all negotiations or previous agreements between the parties with respect to all or any part of the Site. None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Agency Deed conveying title to the Site and this Agreement shall continue in full force and effect with respect to the Site before and after such conveyance, except where specified after recordation of the Certificate of Completion for the Site Development. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. This Agreement and any provisions hereof may be amended by mutual written agreement by Developer and the Agency and such amendment shall not require the consent of any other fee owner, tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust, or any other person or entity having an interest in the Site. 11. MISCELLANEOUS. (a) Approvals and consents required of the Agency hereunder shall not be unreasonably withheld and Agency' s approval or disapproval shall be given within the times set forth in this Agreement, or if no time is given, within 30 days of request therefor. Failure of Agency to approve or 82 227140 disapprove within such time period shall be deemed an approval . Any disapproval shall state in writing the reasons for such disapproval . (b) Time is of the essence of this Agreement. If the last day of any time period stated herein falls on any Saturday, Sunday or legal holiday of the State of California, the period shall be extended to include the next day which is not a Saturday, Sunday or such holiday. (c) Nothing in this Agreement shall be deemed or construed to create the relationship of principal and agent, or of partnership, association or joint venture between the parties to this Agreement. (d) If any portion of this Agreement is held to be illegal, void or unenforceable, all other provisions hereof shall remain in full force and effect to the extent the resulting Agreement preserves the material economic terms of this Agreement. 12 . TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY; DATE OF AGREEMENT. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within thirty (30) days after this Agreement is signed by the Developer, or this Agreement may be terminated by the Developer on written notice to the Agency. 83 22'7140 The date of this Agreement shall be the date it is signed by the Agency. PALM DESERT REDEVELOPMENT AGENCY (Agency) B Executive Director Dated: I AHMAN N COMMER AL DEVELOPUtNT COMP (Deve o er) BY: BY: 512 1//GE 6'/le3 L62746 [14060] 1 84 2-MAY-90 09 : 06: 06 22'7140 EXHIBIT "A" Redevelopment Plan Project Area No. 1 and all amendments to Project Area No. 1 are on file with the Redevelopment Agency. M27567 22'714C EXHIBIT "B" THE PROPERTY INDIVIDUAL SITE AREAS ARE LOCATED AS FOLLOWS: Site Area 1: The property bordered by Highway 111, El Paseo, Painters Path (as realigned) and the Palm Valley Flood Channel . Site Area 2 : The property bordered by Highway 111, Fred Waring Drive, the boundary of Site Area 6 and the Palm Valley Flood Channel. Site Area 3 : The property bordered by Site Area 6, Mollers Garden Center and Painters Path. Site Area 4 : The property bordered by Town Center Way, Fred Waring Drive, Fairhaven and a South property line. Site Area 5: The property bordered by E1 Paseo, Larkspur, Shadow Mountain Drive and San Pablo. Site Area 6 : The property bordered by Site Area 2, Site Area 3, and property lines as depicted on the Land Use Development Plan. 1 22'�140 EXHIBIT "B" Continued THE FOLLOWING REAL PROPERTY IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: The following legal description encompasses the entirety of Site Area 1 on the Land Use Development Plan. Site Area 1 Parcel 1 of Parcel Map No. 25875, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 34 and 35 of Parcel Maps, in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 2 on the Land Use Development Plan. Site Area 2 PARCEL 1: Lots 1 through 75 inclusive and Lots A, B and C of Tract 4489-1, in the City of Palm Desert, County of Riverside, State of California, as per Map Recorded in Book 79, Pages 38 through 42 inclusive of Maps, in the Office of the County Recorder of said County. PARCEL 2 : Lots 1 through 175 and Lots A, B and C of Tract 4489, in the City of Palm Desert, County of Riverside, State of California, as per Map Recorded in Book 83, Pages 34 through 40, inclusive of Maps, in the Office of the County Recorded of said County. AND Parcel 1 of Parcel Map 24090, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 30 through 33, inclusive of Parcel Maps, in the Office of the County Recorder of said County. 2 227140 The following legal description encompasses the entirety of Site Area 3 on the Land Use Development Plan. Site Area 3 Parcel 3 of Parcel Map 24090 in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 30 through 33, inclusive of Parcel Maps, in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 4 on the Land Use Development Plan. Site Area 4 Parcel 2 of Parcel Map 19978, in the City of Palm Desert, County of Riverside, State of California, as per Map Recorded in Book 124, Pages 4 and 5 of Parcel Maps, in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 5 on the Land Use Development Plan. Site Area 5 Parcels 1 and 2 of Parcel Map 4655, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 7, Page 42 of Parcel Maps, in the Office of the County Recorder of said County. • The following legal description encompasses the entirety of Site Area 6 on the Land Use Development Plan. Site Area 6 Parcel 2 of Parcel Map 24090, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 30 through 33, inclusive of Parcel Maps, in the Office of the County Recorder of said County. M27568[ 14060]7 3 227140 EXHIBIT C Development Agreement Attached to original Agreement 227140 EXHIBIT "D" THE SITE All that certain real property and appurtenances thereto, and all improvements now or hereafter located thereon, situated in the County of Riverside, State of California, and described as follows: That portion of Section 19 , Township 5 South, Range 6 East, San Bernardino Base and Meridian, according to the Official Plat of said land approved by the Surveyor General July 15 , 1986, described as follows: COMMENCING at the Northwest corner of the Northwest quarter of said Section; thence Westerly along the North line of the Northwest quarter of said Sections, South 89 degrees 28 minutes East, a distance of 437 . 02 feet; thence North 58 degrees 59 minutes East, a distance of 417 .81 feet; thence South 31 degrees 01 minutes East, a distance of 150 feet; thence South 58 degrees 59 minutes West, a distance of 162 . 97 feet; thence South 89 degrees 28 minutes West, a distance of 295 . 68 feet to the true point of beginning: EXCEPT that portion described as follows: COMMENCING at the Northeast corner of said Northwest quarter; thence along the North line of said Section 19 , South 89 degrees 14 minutes 15 seconds West, 1 , 229 . 46 feet; thence South 0 degrees 11 minutes 40 seconds East, 1, 150. 01 feet; thence North 89 degrees 14 minutes 15 seconds East, 437 . 02 feet; thence North 58 degrees 45 minutes 15 seconds East, 451. 37 feet to one true point of beginning; thence south 31 degrees 07 feet 61 minutes East, 150 feet; thence North 58 degrees 45 minutes 15 seconds East, 6.20 feet; thence North 31 degrees 14 minutes 45 seconds West, 150 feet; thence South 58 degrees 45 minutes 15 seconds West, 5 . 87 feet to the true point of beginning, as reflected in Deed recorded June 26, 1963 in Book 3427 , page 508 from Hoams Construction Company to the City of Riverside. ALSO EXCEPTING therefrom that portion conveyed to the County of Riverside by that Corporation Grant Deed recorded May 11, 1966 as Instrument No. 49649, Official Records, Riverside County records. Said Land is located in the City of Palm Desert. 227140 EXHIBIT E Added Territory to Project Area No. I 22'7140 :. -- -• ..� It I 'L; � '�_\`•: '"^"��.� OE°-off t i•.•._+ "t+.'•:.L-+��: ,: �_ ,y ` . • .ut ._.�..._ rar .r1 �•7 :r: 1 I • �-•r` c —.il J y;�-'s'+'•.t. - - • �: •.,y' �\\.. s. ` a N` .� y:/�%•y�+�.�. •fir%„",. :�1_ ^��c:. t ••ti'tea; • 'i: y. 1� �_-^�.a Imo' !� .n•,.�+.1 � and.__='s:a� �:.:.y 1•'•!• ��:�:-�- 1� `i+c . �:`I' iil�l ....u_e Sr_�1:.�.ar •..��:r^arj T•t.-y..��.�•�.,• 1�. _.-t�!�}'—�'�;'.._ t� . 7 I .•''�} -"dry• _ _ r:•. .•� —� r� �Ji:ram i-'+'ri J n.. -'�'�; {r :� .' •` •t •V"'�-,: ./� l • �i�=��.t ��` :1�:•�1"�t��.J. ,'may.��� 1 r ���',•i•'1\� .������ 1 40 O-RL• •� '.i_.�"�• !� It j ibf r'�"-�' rr71 ` '/. '4 . . city Of �1�LINI DESER AREA BOUNDARY ................. P.O. BOUNDARY •- -- P. 0. CITY LIMIT -------- P. O. SPHERE Ll-NE MA ! &A ncc mT . . . . - - _ e- ne t&tr%1 1% v 1vim• + e• 227140 EXHIBIT F Original Territory Project Area No. 1 221140 11- �s i \ t < C — �. jr. F12-11251%�• ..i-, _., ___ • 3 C- G �:�iMOM1 a _ Pa- s •�-ems_ �� ' �„__ ... �1` Im _ �•��•�. � � •.�%may .._ -'= - 227140 EXHIBIT "G" Ahmanson Commercial Development-Retail Centers PALM DESERT PROJECT DEVELOPMENT STANDARDS FOR THE PROJECT I . Purpose of Development Standards II . Project Introduction A. Overview and Location B. Site Areas and Statistical Summary III . General Notes and Conditions IV. General Development of Project A. Proposed Uses B. Building Square Footage Limits and Maximum Heights C. Density and Intensity of Use D. Open Space V. Planning Guidelines A. Purpose B. Site Planning and Circulation C. Grading/Drainage/Street Standards D. Landscaping, Walls and Lighting E. Design Concept of Buildings/Parking/ Loading Area F. Utility Services and Structures G. Project and Business Identification VI . Plan Review Requirements A. Purpose B. Development/Precise Plan Review C. Development/Precise Plan Contents 12/07/89 227i4o I. Purccse of Develocnent Standards The purpose of the development standards for the Project is to: 1 . Provide the Developer with a planning and development process which will result in a Project that is consistent with the City's General Plan and in furtherance of the goals of the City as set forth in the Agreement. 2 . Provide supplemental criteria for the use, design, density, circulation and development of the Site Areas (as described in. II . B hereof) that will result in an aesthetically pleasing, environmenta_1v harmonious and commercially viable product that expands the goods and services presently available to the community. 3 . Ensure that development occurs in an orderly fashion through long-range planning. 4 . Encourage development that is ocerationall,% functional to both the building operator and the consumer. 5 . Provide for the development of the Project in a manner which is consistent with the to.s and provisions of the Agreement and the Existing Land Use Ordinances. 227140 IZ. Proiect Introducti:n A. Overview The Project presents an opportunity to master plan the remaining large vacant properties within the area of the City subject to the City's Commercial Core Area Specific Plan. The development of the Project in accordance with the provisions of the Agreement and these development standards ensures the preservation of natural open space and furthers the development objectives of the City in an orderly manner. The development of the Project in accordance with the provisions of the Agreement and the development standards provides a number of benefits: 1. It -.aximizes the potential for high quality economic development of the Commercial Core Area. 2 . It allows for the asse^..:,,lage of properties into a comprehensive land use plan which eliminates problems that individual and isolated recruests for developments might present. 3 . It addresses specific policy recommendations of the Palm Desert Commercial Core Area Specific Plan. 4 . It provides for the dedication of hillside preserve to the City and thereby protects and preserves the natural beauty of the hillside areas bordering the Project. 5. It provides for the completion of all necessary signalization and access for Highway 111 from Fred Waring Drive to Town Center Way, as provided for in the Development Agreement. 227140 6. Development in Site Areas 2 , 3 , and 4 may accommodate all uses permitted in the PC-3 zone as identified in the Existing Land Use Ordinances. 7 . Development in Site Area 1 may accommodate all uses permitted in the Office Professional Zone plus retail and restaurant uses as otherwise permitted in the PC-3 Zone. The retail and restaurant uses shall not exceed 20% of the approved gross building area. 8 . Development on Site Area 4: a) Special consideration shall be given to the design of the structures on Site Area 4 , to assure the development shall be compatible with developments east of Fairhaven Drive on the southside of Fred Waring Drive. b) Unless specifically modified by the city council as part of the development review process, the first 100 feet of this site adjacent to Fred Waring Drive shall be restricted to office professional use. 9. Development in Site Area 5 may accommodate all uses permitted in the C-1 zone as identified in the Existing Land Use Ordinances. 10. Parking requirements for layout and ratio for Site Area 2 shall be based upon a formula of 5. 5 parking stalls for each 1000 square feet of gross leaseable area. The standards may be reduced in the following ratio percentage: 1000 car parking area, 10% 1500 car parking area, 12% 2000 car parking area, 14% Over 2500 car parking area up to 15%, subject to justification of the findings as set forth in Section 25.58 . 311 (B) of the Existing Land Use Ordinances. 11. Parking requirements for layouts, sizes, and ratios for Site Areas 1, 3 , 4, and 5 shall be based upon the requirements for general retail and office use as described in the Existing Land Use Ordinances. 22'7140 12 . Changes in the location or configuration of the Site Areas (and the "Buildable Zones" within such Site Areas, as designated on the Land Use Development Plan as attached hereto) may occur as specific site plans are developed. Any such changes will be subject to the prior approval of the Community Development Director of the City. 13 . Tentative Tract Maps may be filed and approved subject to consistency with the Land Use Development Plan. 14 . Location and plans for any required water reservoirs or booster stations shall be submitted to the Community Development Director for approval. Said facilities may be located in the natural open space area indicated in the Land Use Development Plan, subject to approval of the Community Development Director and the Coachella Valley water District. 15. Except as otherwise provided herein, all approvals of the City, the Community Development Director, or the Planning Commission of the City required as provided herein shall be based upon the criteria and standards for such approval set forth in the Existing Land Use Ordinances and the Building Ordinances. 16. Prior to the issuance of any building permit with respect to any Site Area, a precise development plan for the development of an individual Site Area, or a combination of Site Areas, shall be submitted to and shall be approved by the Planning Commission if such precise development plan is consistent with the Land Use Development Plan and complies with the provisions of the Agreement. 17 . The Developer shall be permitted to establish a Project office on Site Area 5 upon execution of the Agreement by the City. 18 . Site Area 6 is designated as natural open space on the Land Use Development Plan and shall be dedicated to the City. Such dedication shall be the only open space dedication or reservation of a portion of the Property for public purposes which will be required by the City with respect to the development of the Project. 227140 B. Site Areas and Statistical Summary The Project is divided into 6 Site Areas. The Land Use Development Plan attached hereto as Annex 1 depicts each Site Area. Site Area 1 Location: SWC Highway 111 and E1 Paseo, SE of Palm Valley Flood Channel Aggregate Acreage: 12 . 3 Site Topography: generally flat Site Areas 2 and 3 Location: Fronting Highway 111 between Fred Waring Drive and Palm Valley Flood Channel Aggregate Acreage: 51.8 Site Topography: generally flat sloping towards southwest Site Area 4 Location: SEC Fred Waring Drive and Town Center Way Aggregate Acreage: 8.5 Site Topography: generally flat Site Area 5 Common Name: Sun Lodge Colony Location: SWC E1 Paseo and Larkspur Lane Acreage: 10.3 acres Site Topography: generally flat with slight slope up to the south Site Area 6 Location: West of Painters Path (1988 alignment) , between Fred Waring Drive and the Palm Valley Flood Channel. Acreage: 54.9. Site Topography: partially sloping and mountainous 227140 ISZ . General Notes A. Puroose This section III is included to : (i) provide certain definitions for use with respect to this Exhibit "G" ; (ii) to describe the relationship of this Exhibit "G" to the Exisiting Land Use Ordinances and the Building Ordinances; and (iii) provide other miscellaneous provisions necessary to effectuate the purposes and intent of the Agreement. B. General Notes 1 . Terms contained in this Exhibit "G" shall have the same meaning as defined in the Cevelopment Agreement unless otherwise defined herein. 2 . Except as otherwise provided in this Exhibit "Gill and in the Agreement, the development of the Project shall be in accordance with, and the development of the Project during the Term shall be governed by, the Existing Land Use Ordinances . 3 . Except as otherwise provided in this Exhibit "G" and in the Agreement, all construction of improvements upon the Property shall conform to the building and construction standards established by the Building Ordinances. 4. whenever the provisions of this Exhibit "G" conflict with the provisions of the Existing Land Use Ordinances or the Building Ordinances the provisions of this Exhibit "G" shall be deemed to control to the extent necessary to effectuate the purposes and intent of the Development Agreement. 5. The maximum aggregate allowable building square footage for the Project shall be 846,700 s. f. . 22'7140 19 . Sizing of all backbone utility facilities shall be predicated on the maximum density proposed for the Project and shall not be required to be oversized to accommodate uses other than with respect to the Project. 20 . The major access to Site Area 2 shall be via a signalized intersection on Highway 111 as indicated on the Land Use Development Plan. 21. All improvements required as Exactions pursuant t:, the attached Development Agreement shall be constructed by Developer congruent with each phase of the Project as such improvements relate thereto, and are necessary with respect to such phase of project development. 22 . The terms indicated on the Lard Use Development Plan shall have the following meanings : A. Building Zcne: The approximate area in which the buildings within the applicable Site Area wil= be located. B. Parking/landscape Zone: The approximate area in which the majority of parking stalls within the applicable Site Area will be located. C. Gateway =nary: An identification element for the Project cr the City, or both, consisting of any combination of signage, landscaping, walls, architectural features or lighting. IV. General Development of the Project A. Proposed Uses Site Area 1 : Any or all uses permitted in the Office Professional Zone. In addition, restaurant and retail uses will be permitted not exceeding 20% of the approved gross building area. Site Areas 2 , 3 , & 4 : Any or all uses permitted in the PC-3 zone of the Existing Land Use Ordinances. Site Area 5 : Any or all uses permitted in the C-1 zone of the Existing Land Use Ordinances. Site Area 6: Natural open space and such related uses as set forth in Section D below and as indicated in the Land Use Development Plan. 227140 B. Maximum Building Scruare Footage Limits and Maximum Heights Site Area Maximum S . F. Height Limit 1 100, 000 per applicable Existing Land Use Ordinances 2 479, 400 per applicable Existing Land Use Ordinances 3 20, 000 per applicable Existing Land Use Ordinances 4 80, 300 per applicable Existing Land Use Ordinances 5 167, 000 per applicable Existing Land Use Ordinances C. Density and Intensity of Use The Developer shall be entitled to develop each of the Site Areas to the maximum building site coverage percentage provided in the applicable Existing Land Use Ordinance as it pertains to the individual Site Area. The Land Use Development Plan depicts the eligible building areas within each Site Area. In the event any Site Area is developed so as to utilize less than the- total maximum square footage listed for any such Site Area in paragraph "B" above, then the differential between the Site Area square footage which is actually utilized and the applicable maximum square footage listed above shall be transferable in whole or in part to any other Site Area (other than Site Area 6) , provided that the resulting maximum square footage with respect to any such Site Area shall not exceed the maximum square footage of use permitted with respect thereto by the Existing Land Use Ordinances. Buildings shall be reasonably distributed within the Site Areas to permit ease of vehicular and pedestrian access, circulation and egress and for proper operational building service requirements. D. Open Space Site Area 6 shall be "natural open space" as defined in the Existing Land Use Ordinances. Site Area 6 is established for the preservation of open space and significant natural resources. The intent of this area is to protect, to the extent practicable, the resources of notable scenic, natural, geologic or historical value. 227140 Uses Permitted: a. Bicycling and hiking trails, and directional trail signs; b. Local and buffer greenbelts; c. Wildlife preserves and sanctuaries; d. Archaeological sites; e. Historical preserves; f. Screening, walls, and fencing as may be required by the Project. g. Forest maintenance/ranger stations h. Water reservoirs,or pumping stations as may be required by the Project. Site Development Standards Site development standards in the open space category shall be in accordance with Existing Land Use Ordinances. V. Planning Guidelines A. Purpose Except as otherwise provided in the Agreement or this Exhibit "G", the development of each Site Area within the Project shall be subject to and controlled by the design and development guidelines established by the Existing Land Use Ordinances and the -Building Ordinances. The following guidelines are intended to be supplemental to those established by the Existing Land Use Ordinances and the Building Ordinances and to the extent they are inconsistent or in conflict with the guidelines established by the Existing Land Use Ordinances and the Building Ordinances, these guidelines shall be deemed controlling. Subject to the foregoing, all development plans for each Site Area shall comply with the following guidelines. B. Site Planning and Circulation Access to the various Site Areas within the Project is to be provided from the adjacent streets and Highway 111 as depicted on the Land Use Development Plan. Interior Site Area vehicular circulation shall be patterned to permit ease of ingress and egress as well as the distribution. of buildings in relation to parking areas to allow for the dispersion of vehicles and pedestrians throughout each Site Area. Each Site Area shall have 22'7140 clearly defined pedestrian routes into and throughout the Site Area in order to minimize potential points of conflict between pedestrians and vehicles. Individual Site Area entries shall occur at the designated locations on the Land Use Development Plan. Building setback$ shall be as depicted on the Land Use Development Plan. C. Grading/Drainage Grading design shall reinforce the architectural and landscape designs in the following ways: A. Assist in screening parking, loading and service areas. B. Reduce the perception of height and mass of large buildings. C. Provide a reasonable transition from the street to the parcel. The applicant may obtain permits for rough grading after approval of conceptual grading plans by the Director of Public Works and the Director of Community Development. Grading shall be permitted outside of an area of immediate development if consistent with the conceptual grading plan. Drainage of surface parking areas and roof areas shall terminate at an underground storm drain system in the public streets. Points of connection will be provided for each Site Area. D. Landscaping Landscape materials shall enhance the major architectural design elements through the coordinated use of indigenous and introduced plant species, lighting, massing, etc. Landscaping shall be in accordance with a Landscape Concept Plan as provided in the Existing Land Use Ordinances. The Landscape concept Plan will be submitted as part of the precise plan at the time development of a Site Area is proposed. The landscape framework will visually bind the Site Areas together while remaining compatible with the desert environment. 22'7140 E. Design Concept of Buildings/Parkincr/Loadinct Areas The architecture of the Project shall possess an underlying compatibility among the various buildings through the use of similar materials, finishes, colors and amenities while allowing a degree of flexibility for individual Site Area expression and identity. All building designs shall be aesthetically agreeable with the desert environment. Parking requirements for layouts, sizes, and ratios for Site Areas 1, 3,4 and 5 shall be based upon the parking requirements for Existing Land Use Ordinances for general retail and office. Site Area 5 shall provide 200 public parking spaces in addition to the number of spaces required by the C-1 zone under the Existing Land Use Ordinances for the building area. Loading docks, service delivery areas, where provided, are required to be screened, recessed, and/or enclosed so as not to be visible from adjacent streets and properties. Loading, service and delivery areas shall not encroach into any setback areas. F. Utilities and Utility Structures Public services and utilities will be provided by the following public/private agencies unless otherwise approved by the Director of Community Development: a. Water - Coachella Valley Water District b. Sewer - Coachella Valley Water District c. Flood Control - Coachella Valley Water District d. Electricity - Southern California Edison Company e. Natural Gas - Southern California Gas Company f. Telephone - General Telephone Company g. Schools - Palm Springs and Desert Sands Unified School District h. Public Parks - Coachella Recreation and Parks District i. Fire Protection - Riverside County Sheriff Department j . Police Protection - Riverside County Sheriff Department k. Solid Waste Disposal - Riverside County Road Department and Palm Desert Disposal Services 1. Television - Coachella Valley Television 227140 All utilities shall be installed and maintained underground. Utility design shall not place excessive burdens upon offsite systems. Temporary overhead power and telephone facilities are permitted during construction only. Any device for transmission or reception of communication signals shall be screened. Rooftop devices shall not extend above the building's highest architectural element or be visible within a horizontal line of sight. Ground-mounted devices shall be screened from view from adjacent streets and property. Outdoor trash areas shall be visually screened by a 6-ft.-high (minimum) , non combustible enclosure constructed of the same materials and finishes as the adjacent building. Enclosures shall be designed and located so as not to be highly visible from adjacent streets and property. G. Project and Business Identification Project and City entry statements composed of signage, landscaping, architectural features, or a combination of same, will be depicted on the landscape concept plan. The purpose of this element is to announce both the Project, the entry to the City and/or the gateway to the El Paseo district in a manner that furthers the sophisticated image of the City. VI. Plan Review Requirements A. Purpose This section is established to ensure that the overall purpose and intent of the Project is satisfied and implemented in an orderly manner. B. Development/Precise Plan Review When the actual development of a Site Area is proposed, an application for approval of a precise plan shall be filed with and shall be approved by the Planning Commission if such precise plan is consistent with the Land Use Development Plan and complies with the provisions of the Agreement and this Exhibit "G" . A precise plan may cover one or more Site Areas of the Project. 227140 C. Precise Plan Contents Subject to the provisions of the Agreement and this Exhibit G the Precise Plan shall include the requirements of Section 25.73 . 011 of the Existi..-g Land Use Ordinances. Z O `I c {I Y it it ~ < ! 1t i i ■ r i��Yam`•.:_ _-^�� J �_ � I �t / `� � � '�[ a �r+� y31N3.) Mw�02 1 IS' •\\ /y9u Div ���- i f ,! 1� �O cT C. � L Ole 12 Ji dS a '7 14 i it ,. rdoQti i st O O G � `- 2217140 r* ar+� yrt.rxyrt _. .LI lot M •vt r ` r� • II , C � • . • IoFC �z L z �O C- z Cq (� La 227140 EXHIBIT "H" The City and the Agency desire to provide or to cause to be provided the following public improvements to service property within and outside of the Project. 1 . The Developer will provide to the City a temporary non-exclusive easement on Site Area 5 for use by the City for 200 public parking spaces . Such easement shall be located within the area designated as the "Parking Zone" on Site Area 5 as depicted in the Land Use Development Plan attached to Exhibit "A" of the Development Agreement. Such easement shall remain in existence until such time as a specific development plan for Site Area 5 has been submitted by the Developer to the City and has been approved by the City. The City shall be solely responsible for the costs of construction and maintenance of any public parking improvements to be located on such easement and the Developer shall not be responsible for any costs associated therewith. In addition, the City shall reimburse the Developer for all costs incurred by the Developer in acquiring and maintaining such policy or policies of insurance (including liability insurance) with respect to the use of such parking facilities as are customary. Prior to the granting of such easement, the City and Developer will in good faith negotiate and enter into an agreement which will, among other things, define the boundaries of such easement within the Parking Zone of Site Area 5, the duration of the easement and the conditions and restrictions with respect to its use; all as contemplated by the Development Agreement and this Paragraph 1. 2 . In conjunction with the construction of the private commercial/retail facilities to be located on Site Area 5, the Developer shall provide a minimum of 200 public parking spaces on Site Area 5 . For the purposes of this Exhibit "H" , the term "public parking spaces" shall mean those parking spaces which: (i) are designated by the Developer as available for parking by the general public; ( ii) are not 1 227140 designated by the Developer for preferential or exclusive use by patrons or employees of the private commercial/retail facilities to be constructed on Site Area 5, and (iii) may be used by the general public for parking during normal business hours without the payment of fees or charges for such parking imposed by the Developer. Prior to the commencement of construction of the private commercial/retail facilities to be located in Site Area 5, the Developer and the City shall in good faith negotiate and enter into an agreement which will provide, among other things, for ( i) the designation and location of such public parking spaces, ( ii) the improvements associated therewith, (iii) the means of access by the public, ( iv) the conditions and restrictions with respect to the use of such public parking spaces, and (v) the timing of the construction of such public spaces . The Agency and the Developer hereby agree that the Developer is not obligated to but may, in its sole discretion, provide for more than the required 200 public parking spaces and to the extent it does so, all of the costs incurred by the Developer with respect to such additional public parking spaces shall be reimbursed to the Developer by the Agency in the same manner and to the same extent as those costs incurred by the Developer with respect to the required 200 public parking spaces . M03474 [ 14060] 7 2 22'7140 EXHIBIT"I" SCHEDULE OF PERFORMANCE I. Site Conveyance 1 . Agency shall authorize Within 10 days of execution, and shall deliver receipt of the executed copies of this Agreement executed by Agreement to Developer. Developer. 2 . Agency to use best efforts Within 90 days to negotiate and acquire after the written the Site and Leasehold request of the Interests. developer (The Notice Date) per Section 4 . 1 of the Agreement. 3 . Agency shall obtain per- Within 30 days mission or issue pre- after the Notice Date. condemnation orders allowing Developer access to the site. 4 . Agency commences pro- On or before the ceedings for resolution first regular of necessity meeting date of the Agency fol- lowing 90 days after the Notice Date. 5 . Developer shall deliver At the time as to the Agency an un- provided for in conditional and irrevocable Section 4 . 6 of the letter of credit in the amount Agreement. of $635, 000 6. Agency files condemnation Within 14 days complaint of the adoption of the resolution of necessity. 7 . Agency shall open an escrow Within 120 days with Title Company after receipt of Letter of Credit 12/07/89 221140 3 . Escrow closes and agency As soon as possible, conveys the site free of but not later than leasehold interests to 30 days after ac- Developer. quisition. II. Site Development 1 . Developer shall prepare Within 60 days and submit demolition, following close of prelim street recon- escrow. struction plans for the Site. 2 . Agency shall approve or Within 20 business disapprove the demolition days of Developer's and preliminary street submission. reconstruction plans for the Site. 3 . Developer shall prepare Within 60 days and submit final demolition following approval of and street reconstruction preliminary plans. plans for the Site. 4 . Agency shall approve or Within 20 business disapprove the final days of Developer's demolition and street re- submission. construction plans for the site. 5 . If disapproved, Developer Within 15 days after shall submit revised disapproval by Agency. demolition and reconstruction plans. 6. Agency shall approve or Within 15 days of disapprove any revised receipt of revisions. demolition and street reconstruction plans. 221140 III . Site Construction 1 . Developer shall complete Within 90 days demolition and clearance following approval of site as detailed on by Agency of final demolition plan. drawings. 2 . Developer shall commence Within 180 days and complete the con- following approval by struction of the Agency of final improvements described in drawings. Paragraph B in the Scope of Development. 3 . Agency shall issue Within 30 days Certificate of following substantial Completion. completion of the improvements described in 2 above. IV. Public Improvements and Related Actions-Development 1 . Developer shall prepare within the later of and submit complete demo- 30 days following lition plans for Site Area execution of the 5 . Agreement or March 1, 1990. 2 . Agency shall approve or within 20 days of disapprove the demolition Developer's submission. plan. 3 . Developer shall submit Basic Within the later of 60 Concept Drawings for pedes- days following trian amenities and execution of the location of temporary Agreement or April 1, easement of use for parking 1990. 4 . Agency shall approve or dis- within 30 days follow- approve the Basic Concept ing Developer's sub- Drawings for pedestrian mission. amenities and location of temporary easement of use. 22"1140' 5 . Developer shall submit pre- Within 30 days of liminary pedestrian improve- approval of the Basic ment plan including land- Concept Drawings. scaping lighting and sidewalks. 6 . Agency shall approve or dis- Within 20 days of approve the preliminary Developer's submission. pedestrian improvement plans. 7 . Developer shall prepare and Within 30 days of submit final pedestrian im- approval of preliminary provement plan. improvement plans. 8 . Agency shall approve or dis- Within 20 days of approve the final pedestrian Developer's submission. improvement plan. 9 . If disapproved, Developer Within 15 days of shall submit revised pedes- receipt of revisions. trian improvement plan. 10 . Developer shall submit Basic In accordance with the concept Drawings for develop- Development Agreement. ment of project to include all parking facilities and traffic improvement and signalization plans. V. Public Improvement and Related Actions - Construction 1 . Developer shall complete The later of 120 days demolition and clearance following approval of of Site Area 5. demolition plans or September 30, 1990. 2 . Developer shall complete The later of 60 days construction of the following final pedestrian improvement approval of pedestrian plan. improvement plans or September 30, 1990. 3 . Developer shall execute and No later than September deliver temporary easement of than September 30, use for parking. 1990. 227140 4 . Developer shall commence con- In conjunction with the struction of permanent parking Site Area 5 project facilities for the project Development and the and Agency shall terminate Development Agreement. temporary easement of use for parking. 5 . Developer shall complete con- Within 365 days of struction of permanent commencement of con- parking facilities for the struction. project. 6. Agency shall issue final Within 30 days Certificate of Completion following substantial for the Public Improvements completion of the Public Improvements. 221 '140 EXHIBIT "J" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: ATTENTION: MAIL TAX STATEMENTS TO: [Documentary Transfer Tax is not of public record and is shown on a separate sheet attached to this deed] - or - (Documentary Transfer Tax of $ , based on full value of property conveyed] GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, , a hereby grants to a , the real property located in the City of , County of , State of California, described on Exhibit A attached hereto and made a part hereof. Executed as of this day of , 19 [SIGNATURE BLOCK] 227140 EXHIBIT "K" LETTER OF CREDIT [AMOUNT] Letter of Credit No. [Date] To: The Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: Mr. Carlos Ortega Assistant City Manager Gentlemen: We hereby establish in your favor this irrevocable Letter of Credit for the account of [insert name of Beneficiary] (herein called the "Beneficiary" ) , in the amount equal to $635,000 (said amount, as reduced from time to time pursuant to the terms hereof, being herein called the "Commitment" ) . Any drawing under this Letter of Credit shall be made by delivering to the Letter of Credit Department of Bank, at its address hereinafter set forth, a draft in the form of Annex A hereto, duly signed by you or by the Transferee hereinafter referred to and specifying the amount of such drawing, together with a certificate duly signed by you or the Transferee stating that: [Insert language for drawing certificate] Any such certificate signed by you shall be conclusive as to such matters . Drafts so presented shall be payable at [insert terms] ; provided, however, that any presentation after on any day shall be construed as a presentation made on the next business day. 1 22'7140 Drafts against this Letter of Credit must be drawn and presented at the office of Bank specified in Annex A together with the accompanying certificate. It is a condition of this Letter of Credit that the Commitment hereunder shall be automatically reduced by the amount of each drawing hereunder. This Letter of Credit may not be transferred by you. This Letter of Credit shall expire on the earlier of (a) the reduction of the Commitment to zero or (b) [insert Expiration Date] . Except as otherwise expressly stated, this Letter of Credit is- s-ubject to the Uniform Customs and Practice for Documentary Credits [ 1983 Revision] of the International Chamber of Commerce Publication No. 400 . Yours very truly, [Name of Bank] M03477 [ 14060]7 227140 EXHIBIT "L" Schedule of Permitted Exceptions 1 . Property taxes, including any assessments collected with taxes, to be levied for the current fiscal year, which are a lien not yet payable. 2 . An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: Southern California Edison Company, a corporation Purpose: an electric line, consisting of poles, necessary guys and anchors , cross-arms, wires and other fixtures and appliances Recorded: August 7 , 1964 Book 3770 Page 138 of Official Records Affects : the Southeasterly 6 feet 3 . An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: California Water and Telephone Company, a corporation Purpose: telephone line, consisting of poles, necessary guys and anchors, braces, cross-arms, wire, conduits, cables and other fixtures and appliances Recorded: September 21, 1964 Book 3806 Page 7 of Official Records Affects : the southeasterly 5 feet 4 . Water rights, claims or title to water of record. M06322 [ 14060] 7 1 227140 EXHIBIT M SCOPE OF DEVELOPMENT, MINIMUM DEVELOPMENT REQUIREMENTS AND PUBLIC IMPROVEMENTS A. GENERAL The Site is approximately one acre and is a portion of the 49 .8 acre Site Area 2 of the Land Use Development Plan and is situated in the northeast portion of Site Area 2, with 150 feet of lineal footage fronting on Highway 111 (the "highway 111 Frontage") . The Site is to be developed in conjunction with the development of Site Area 2 in accordance with the Development Agreement and the Land Use Development Plan. B. MINIMUM DEVELOPMENT REQUIREMENTS Developer shall construct and develop on the Site, at a minimum, the following: 1 . Demolition, clearance and rough grading of the Site as necessary to prepare the Site for commercial development as contemplated by the Development Agreement; 2 . Reconstruction of the Highway 111 Frontage, including such highway surface reconstruction, and reconstruction of curbs, gutters, sidewalks, irrigation, drainage systems, highway or directional signage, striping and utility connections as necessary to integrate the site with the existing Highway 111 Frontage. 12/07/89 22'7140 C. OTHER SITE DEVELOPMENT IMPROVEMENTS Upon approval of the applicable Plans by the City, the Developer shall construct and develop, on a phased basis in accordance with the Development Agreement those structures, improvements, parking areas, landscaping, irrigation and drainage systems, sidewalks, and other supporting utility systems and infrastructure necessary to integrate the Site -with the phased development of Site Area 2 . D. PUBLIC IMPROVEMENTS 1 . The Public Improvement as provided for in Exhibit "H" , Public Improvements Paragraph 1, of this Agreement. 2 . The Public Improvement as provided for in Exhibit "H", Public Improvements Paragraph 2 , of this Agreement. 227140 EXHIBIT "K" LETTER OF CREDIT [AMOUNT] Letter of Credit No. [Date] To: The Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: Mr. Carlos Ortega Assistant City Manager Gentlemen: We hereby establish in your favor this irrevocable Letter of Credit for the account of [insert name of Beneficiary] (herein called the "Beneficiary" ) , in the amount equal to $635, 000 (said amount, as reduced from time to time pursuant to the terms hereof, being herein called the "Commitment" ) . Any drawing under this Letter of Credit shall be made by delivering to the Letter of Credit Department of Bank, at its address hereinafter set forth, a draft in the form of Annex A hereto, duly signed by you or by the Transferee hereinafter referred to and specifying the amount of such drawing, together with a certificate duly signed by you or the Transferee stating that: [Insert language for drawing certificate] Any such certificate signed by you shall be conclusive as to such matters . Drafts so presented shall be payable at [insert terms] ; provided, however, that any presentation after on any day shall be construed as a presentation made on the next business day. 1 22'7140 Drafts against this Letter of Credit must be drawn and presented at the office of Bank specified in Annex A together with the accompanying certificate. It is a condition of this Letter of Credit that the Commitment hereunder shall be automatically reduced by the amount of each drawing hereunder. This Letter of Credit may not be transferred by you. This Letter of Credit shall expire on the earlier of (a) the reduction of the Commitment to zero or (b) [insert Expiration Date] . Except as otherwise expressly stated, this Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits [ 1983 Revision] of the International Chamber of Commerce Publication No. 400 . Yours very truly, [Name of Bank] M03477 [ 14060]7 227140 EXHIBIT "L" Schedule of Permitted Exceptions 1. Property taxes, including any assessments collected with taxes, to be levied for the current fiscal year, which are a lien not yet payable. 2 . An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: Southern California Edison Company, a corporation Purpose: an electric line, consisting of poles, necessary guys and anchors, cross-arms, wires and other fixtures and appliances Recorded: August 7, 1964 Book 3770 Page 138 of Official Records Affects: the Southeasterly 6 feet 3 . An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: California Water and Telephone Company, a corporation Purpose: telephone line, consisting of poles, necessary guys and anchors, braces, cross-arms, wire, conduits, cables and other fixtures and appliances Recorded: September 21, 1964 Book 3806 Page 7 of Official Records Affects : the southeasterly 5 feet 4 . Water rights, claims or title to water of record. M06322 [ 14060]7 1 227140 EXHIBIT M SCOPE OF DEVELOPMENT, MINIMUM DEVELOPMENT REQUIREMENTS AND PUBLIC IMPROVEMENTS A. GENERAL The Site is approximately one acre and is a portion of the 49 .8 acre Site Area 2 of the Land Use Development Plan and is situated in the northeast portion of Site Area 2, with 150 feet of lineal footage fronting on Highway 111 (the "highway 111 Frontage") . The Site is to be developed in conjunction with the development of Site Area 2 in accordance with the Development Agreement and the Land Use Development Plan. B. MINIMUM DEVELOPMENT REQUIREMENTS Developer shall construct and develop on the Site, at a minimum, the following: 1 . Demolition, clearance and rough grading of the Site as necessary to prepare the Site for commercial development as contemplated by the Development Agreement; 2 . Reconstruction of the Highway 111 Frontage, including such highway surface reconstruction, and reconstruction of curbs, gutters, sidewalks, irrigation, drainage systems, highway or directional signage, striping and utility connections as necessary to integrate the site with the existing Highway 111 Frontage. 12/07/89 227140 C. OTHER SITE DEVELOPMENT IMPROVEMENTS Upon approval of the applicable Plans by the City, the Developer shall construct and develop, on a phased basis in accordance with the Development Agreement those structures, improvements, parking areas, landscaping, irrigation and drainage systems, sidewalks, and other supporting utility systems and infrastructure necessary to integrate the Site with the phased development of Site Area 2 . D. PUBLIC IMPROVEMENTS 1 . The Public Improvement as provided for in Exhibit "H" , Public Improvements Paragraph 1, of this Agreement. 2 . The Public Improvement as provided for in Exhibit "H", Public Improvements Paragraph 2 , of this Agreement. 227140 EXHIBIT "N" PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned Palm Desert Redevelopment Agency, a public body corporate and politic, duly organized and existing under the laws of the State of California (the "Agency" ) , promises to pay to the order of (the "Company" ) , at , California, or at such other place as the holder of this Note may from time to time designate, the principal sum of [insert principal amount of Public Improvement Reimbursable Costs] DOLLARS ( $ ) , plus interest as computed below. Interest on the principal sum of this Note from time to time outstanding will be computed from the date hereof at a fluctuating interest rate per annum equal to one percent ( 1%) above the Prime Rate (as defined below) , but in no event to exceed the maximum rate of interest permitted by the Community Redevelopment Law of the State of California (constituting Part 1 of Division 24 of the Health and Safety Code of the State of California and the Acts amendatory thereof and supplemented thereto) (the "Law" ) . Interest will be computed on a three hundred sixty ( 360) day basis and the actual number of days elapsed. The term "Prime Rate" means that rate of interest publicly announced from time to time by Bank of America 1 227140 National Trust and Savings Association, at its Los Angeles, California Executive Offices as its "reference rate" for unsecured commercial borrowings, said rate to change on and as of the date of any change in said "reference rate" . Reference is hereby made to the Disposition, Development and Implementation Agreement between the Agency and the Company dated , 1989 (the "Agreement" ) and to the provisions therein describing the security of this Note and the nature and the sources of funds of the Agency to be used by the Agency in the payment of this Note. The interest on and principal of this Note shall be payable as follows: On the first business day of each May and November following the date hereof, the Agency shall withdraw from its special fund established pursuant to Section 33670(b) of the Law all Reimbursable Tax Increment (as defined in the Agreement) then on deposit in such special fund and shall apply such Reimbursable Tax Increment as follows: (a) first, to the retirement of the then unpaid principal on this Note; and (b) second, to the payment of all interest then accrued and unpaid on this Note. Notwithstanding anything to the contrary contained in this Note, the payment obligations of the Agency with respect to the principal and interest on this Note shall be 2 22'71,1 Q deemed satisfied and discharged in whole at such time as the Agency shall have paid to the holder to hereof principal and/or interest in an aggregate amount equal to $5, 000,000 . Any accrued but unpaid interest on the Note shall itself bear interest at the Prime Rate until paid. The Agency agrees that the holder of this Note may, without notice to the Agency and without affecting the liability of the Agency, accept additional or substitute security for this Note, or extend or renew this Note. All amounts payable under this Note are payable in lawful money of the United States . Checks will constitute payment only when collected. The agency hereby grants to the holder hereof, until payment in full of all amounts payable by the Agency hereunder, a pledge of and lien on all of the Reimbursable Tax Increment subject only to any such prior liens with respect thereto as are expressly permitted under the Agreement. Except for the Reimbursable Tax Increment, no funds or properties of the Agency shall be pledged to, or otherwise liable for, the payment of principal of or interest on this Note. The Agency hereby covenants that, so long as this Note remains unpaid, the Agency shall not issue any bonds, notes or other obligations, enter into any agreement or otherwise incur any indebtedness, which is in any case secured by a lien on all or any part of the Reimbursable Tax 3 227140 Increment which is superior to or on a parity with the lien established under the Agreement and hereunder for' the security of this Note. The Agency will keep, or cause to be kept, proper books of records and accounts, separate from all other records and accounts of the Agency, in which complete and correct entries shall be made of all transactions relating to the special fund of the Agency and the Reimbursable Tax Increment. Such books of record and accounts shall at all times during business hours be subject to the inspection of the holder hereof, or its representatives authorized in writing. The Agency shall comply with all requirements of the Law to insure the allocation and payment to it of the Reimbursable Tax Increment, including without limitation the timely filing of any necessary statements of indebtedness with appropriate officials of the County of Riverside and (in the case of supplemental revenues and other amounts payable by the State of California) appropriate officials of the State of California, and shall forward information copies of each such filing to the holder hereof. Upon any default under this Note the holder may, at its option and without notice, declare immediately due and payable the entire unpaid principal sum of this Note together with all accrued interest. 4 227140 The Agency agrees to pay all costs of collection when incurred, and all costs incurred by the holder hereof in exercising or preserving any rights or remedies in connection with the enforcement and administration of this Note or following a default by the Agency, including but not limited to reasonable attorneys ' fees . If any suit or action is instituted to enforce this Note, the Agency promises to pay, in addition to the costs and disbursements otherwise allowed by law, such sum as the court may adjudge reasonable attorneys ' fees in such suit or action. This Note will be governed by California law, except to the extent that federal law preempts the laws of the State of California, in which event such federal laws shall govern this Note, and all persons and entities in any manner obligated under this Note consent to the jurisdiction of any federal or state court within the State of California having proper venue and also consent to service of process by any means authorized by California or federal law. PALM DESERT REDEVELOPMENT AGENCY By: Its: Chairman M03479 [ 14060]7 5 EL PASEO SHOPPING CENTER PALM DESERT, CALIFORNIA PROPOSED PROJECT REHABILITATION APRIL 8, 1998 PRESENTED BY: NEWCO MANAGEMENT COMPANY 6320 CANOGA AVE., SUITE 1430 WOODLAND HILLS, CA 91367 EL PASEO SHOPPING CENTER PALM DESERT, CALIFORNIA EXECUTIVE SUMMARY REHABILITATION: The market conditions in the Coachella Valley are changing rapidly. Current favorable economic conditions are boosting the discretionary spending power of the wealthy, retired and vacationing consumers who are the mainstay of the retailers in this popular Southeast desert community. The El Paseo Shopping Center is strategically located within this market on heavily traveled El Paseo Boulevard, commonly referred to as the "Rodeo Drive"of the desert. A new development, nearing completion, called the Gardens is anticipated to celebrate its grand opening in November of this year. This new Shopping Center will be the home of several national high-end retailers such as Saks Fifth Avenue, Brooks Brothers and Eddie Bauer. We believe this new development will have a significant positive effect on the future viability of the El Paseo Shopping Center. Benefiting from its location at the northwest corner of the intersection where this new center is being built, El Paseo will experience a substantial increase in customer traffic which we believe should result in higher rents and a greater value. Currently, due to its age(almost 25 years old) and design,the El Paseo Shopping Center is not able to attract the higher end tenants associated with this new development and, as a result, cannot command the higher rental rates. In our professional opinion, the current development activity presents a strategic opportunity to benefit from rehabilitating El Paseo Shopping Center. The subject property, if brought up to the standards of the surrounding neighborhood, would be capable of attracting these higher-end tenants because of its proximity to the Gardens and its national anchor tenants. The rehabilitation, if completed, could coincide with the grand opening of the Gardens in order to take advantage and benefit from the significant promotional activity that will no doubt occur. Local government agencies have expressed serious interest in the El Paseo site as a candidate for the City of Palm Desert Redevelopment Agency contributing a significant amount toward the El Paseo rehabilitation cost. In exchange for these funds, the city would receive a parking easement and possibly a negotiated discount in the rent for a Visitors Center. It has also been suggested that the city would allow an additional building to be constructed in the existing gap between buildings B and F on the side of the property facing El Paseo Boulevard. This new, leasable structure would be approximately 4,000 SF in size and could accommodate four or more additional potential high- end retail tenants. Enclosed are two scenarios based upon a five-year forecast. Scenario one shows the returns from the property as a result of maintaining the status quo. Scenario two reflects the rehabilitation of the Center and construction of the additional building with contributions from the City Redevelopment Agency. A more detailed summary for the assumptions used in each scenario is included with each of the 5-year forecasts. Unlike its neighboring properties, El Paseo Shopping Center has not been revitalized and is less aesthetically pleasing because of its outdated architectural design. This limits the center's customer traffic, tenant draw,rent potential and ultimately its sale value. Preliminary cost estimates for the rehabilitation are as follows: Parking Lot rehabilitation: $250,000 Existing store-fronts rehab: $250,000 New Shops: $300,000 Total Costs: 800 000 Provided an agreement can be reached with the City Redevelopment Agency to fund 75 percent of this cost, then the center not only benefits in projected cash flow over the next five years (by $371,555) but in bringing the center up to date and more in line with the surrounding retail stores in the area. In our opinion, the current economic conditions surrounding El Paseo Shopping Center offer a unique opportunity to maximize the benefits of renovating this property. This could be done by capitalizing on the momentum of the adjacent new major development while also obtaining governmental financial assistance: After your review of the enclosed information, we will be prepared to answer any questions which you may have. EL PASEO SHOPPING CENTER EL PASEO SHOPPING CENTER PALM DESERT, CALIFORNIA DESCRIPTION El Paseo Shopping Center is located mid-way along El Paseo Boulevard, a street that was developed to attach high-end specialty boutiques,art galleries and restaurants. El Paseo Shopping Center does not merchandise for the typical El Paseo customer, its proposed new anchor tenant is Office Max, a national office supply house, with Cocos restaurant and Kentucky Fried Chicken adjacent to the anchor. To the southeast of EL Paseo Shopping Center, lies a new development that is nearing completion. This new development, known as the Gardens, will house such tenants as Saks Fifth Avenue, Talbots, Bennetton Sports System and Brooks Brothers, all nationally known high-end retailers. El Paseo Shopping Center was constructed in 1974; the buildings are a combination of concrete block with troweled plaster finish and wood frame with stucco finish with both wood shingle and flat roofs. The buildings comprise approximately 58,000 square feet of which the anchor tenant takes up 46%. The balance of the tenants are small support businesses, for example; dry cleaning, bakery, book store, travel agencies and various small boutiques. . i BNVI 3Nidni III IT(1 N3H�IH� ' / A)I�lllN3N ! • � i c J � U m � J , U i Q C / U m Cd O Q co > O c i co W Ow 0 = O d Q T J • T W i i T t_ Q ♦ 1 i J ' &/V rro�e 00 by z a SS Nb.S J -loll a EL PASEO SHOPPING CENTER PALM DESERT, CALIFORNIA PROPOSED REHABILITATION SCENARIO I - MAINTAIN "AS IS" This analysis assumes that nothing will change. Annual income is based upon existing leases. Lucky and Cocos rental will remain constant through the remainder of their term. It is assumed that the increased customer traffic produced by the new adjacent development will enable the property to maintain its occupancy levels. However,the rents are assumed to remain flat due to the inability to attract higher paying tenants to the Center because of the outdated design, appearance, etc. The square footage of the area excluding Lucky and Cocos leased premises is 23,752. A five percent vacancy factor is incorporated using only the square footage of the center which excludes Lucky and Cocos. 1999 Operating Expenses allow for a three percent increase over 1998. Tenant Improvements are calculated by using a five percent rolling vacancy of 1,187 square feet and allowing $4.00 per square foot for improvements. Lease commissions are based upon 1,187 square feet and rent of $1.05 per square foot for three years and 6% commission. ono - O en PM en Nr- NtN 00 � (C 00 W)M o O� D1 O O et 44 6N4 M %C 6 4 N M en 00 641�N 69 M M �0 O\ I� 0000 ON N O O O -+ o0 O., cM 00 o et N 0�0 C� O� O 64 M yq N M `� en V� Gm 66 N V) � 0000 01 V1 et 0000 l- O en t- N t �o O %O M N r1 N CD ON enO M cr M O M [� 110 O� N �O o0 01 00 V1 N -- �O [- 00 N 6rq 1) M 110 cq N ti bl9 t� M O M Ol M 0000 r- O N of M C O N CD 00 er ON 10 ON .-i N [� d ON V1 00 O kn 00 O M 6�o 1-1 64 N M u 00 er 69 6M9 00 01 N 0000 N O N N O\ m M kf) 000 N ON O O 01 tr1 (� CV .-. O CIF) n M ON C14 6Gol M 69 6�R bM14 en en � w r�. o > w >' FWQ z A, > H H p z � z o ¢ aaWwO waoz w O ¢ Uw Hx z w z wow oxOa0 � > p 0w O > O w 0-4 z � a ¢U wHoH zW a aU w c7 c7 w U Wxaa �i HU "-� *l � o0W � oo Z H Ey zw ¢ d Za � Q � wcr�L. ¢ U ¢ ww ¢ d d Q ¢ pZ W � � Q > PLO H �aU a � OWp" �"� Z ww o O c W ccnrcnc W � o � W � � » EL PASEO SHOPPING CENTER PALM DESERT, CALIFORNIA .PROPOSED REHABILITATION SCENARIO II - PROPOSED REHABILITATION This analysis assumes that the rehabilitation will occur. Annual income is based upon existing leases,with the addition of 4,000 square feet of space. Lucky and Coco's rental will remain constant for the duration of their lease terms. The rent for the 4,000 square foot space is calculated at$1.50 per square foot, plus triple net costs ($7,080 x 12 = $84,960). The balance of the square footage rents are calculated at$1.50 per square foot,plus net charges, when current leases start to expire and renewals can be made at a higher rental rate. All income includes the triple net charges for operating expenses at a rate of$.27 cents per square foot per month. Operating Expenses and future rents allow for a three percent increase over the previous year. A five percent vacancy factor is incorporated using only the square footage of the center which excludes Lucy and Cocos. Tenant Improvements are calculated based on the existing rent roll and allowing $4.00 per square foot for improvements. The 4,000 square foot building will need approximately $10.00 per square foot for improvement, assuming that the shell construction will include plumbing for restrooms, etc. Lease commissions are based upon leasing space which becomes vacant at a rent of $1.50 per square foot for three years, a 6% commission, for new leases and 3% for renewals (4% effective) plus in the first year, commission on the lease up of the 4,000 square foot building at $1.50 per square foot, for three years at 6 percent. t� t- On N 01 � eD eq N tl- O O r [� N N le O M o f M N C14 tn 00 00 O N 64 64 69 N us v N E!4 M lzr N OMi 0000 00 N O CD ON O •-• N en 00 \O N r- 0v fV �o d O N 00 N NCD eq kn 00 rl- ~ N 69 64 69 N � In r ti �-. t}N � O O 00 N r N to O O N O -- N .-. O M %10Cq V M -• qt O N N N N 0000 N6N9 t N tn kn '--� 6*3 to kn 0000 \�D O O ON O O M ON N 00 00 N M N O t` 00 n 01 r O 00 N M K1 tn 14 O N in t`C*4 00 N N N � � � O 64 64 69 a.i 66 Gn us N �o l� et cM N N M O O \0 �D 01 00 N U1 It rl M M O O rl !! � qt 00 %0 N !h d� O\ O O O O O� kn c+l N O M t- t- N O O t- t- 6N4 6t- 6VR N IV 00 � r-1 ti f/4 ` 64 69 0 W � z w o Q H to c �ZLn 3 O w p � � > x 0 C) cn w 1:4c� 0 U zH � F; C) 4j w cncn H U a U � UOwA zavaA � o ww ¢ U o ¢ a W Wd } � � ap:, � Qoj H �j H E"' vnv) v) U E"' Wow WIZ � � o a o za ° 01 EL PASEO SHOPPING CENTER PALM DESERT, CALIFORNIA OUTLINE OF REHABILITATION WORK The rehabilitation of the El Paseo Shopping Center will include facade changes to the structures to bring the design in line with the architectural flavor of the neighborhood. The work will be non- structural in nature and will create as little disruption as possible to the existing tenants. Item D of this proposal includes preliminary architectural renderings provided by an architect who is working closely with the prospective new anchor tenant, Office Max. Apart from those reasons mentioned in the executive summary, it is logical to tie our rehab into the work required by Office Max since a considerable portion of the cost will be borne by this new tenant. A brief overview of the work included in the rehabilitation is as follows: • The troweled plaster finish will be replaced with new stucco with a sand finish. • The overhangs on the El Paseo buildings will be eliminated and the use of awnings for tenant identification purposes will be used in compliance with the policy of the City of Palm Desert. • The parking lot work will involve creating a"pedestrian friendly" atmosphere. The design will include landscape work, creation of seating areas and will bring the entire property up to current ADA (America with Disabilities Act) standards. • Additional shops on El Paseo will be constricted with an estimated 60 to 80 feet of frontage by 45 feet of depth. The construction of this new building will eliminate the break in structures that currently exists between building B and F of the Center. (See attached drawings.) The costs, as outlined in the executive summary,are preliminary. However,in our opinion,we must take advantage of the favorable current attitude of the local governing agencies that have stated that they are willing to assist in financing this project. a m O198d uB3 .01 — o 7 -It :w. � a 1> x- Bw X x m •LLI 0 .0 W 0 oCl l QZ UJ M e•IOL slx 3 - - z' • „��MNYl�•�7J0 yqV OMI/•�7�]•J Oil orY�+f ' l ILL I Via! u i DO .. _ y' .'� �3'•I�• it I ... 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GM011I03 CITY OF PALM DESERT 5/13/94 Vouchers/Encumbrances Inquiry 8:39:02 Vendor . . . . . 929 RIVERSIDE COUNTY, CLERK OF THE Position to . . . . 1994 Starting fiscal year Type options, press Enter. 1=Select Encumbrance --- Check --- Opt Type Date Project Amount Liquidation Number / Date _ AP 12/28/1993 78.00 42849 Account . : 110-4470-412.32-10 Invoice : AHMANSON COMMRL 12/28/1993 F3=Exit F5=Encumbrances F11=Print vendor activity listing F12=Cancel 14-03 SA MW KS IM II S1 S1037686 KB a .J11V pW" NOTICE OF DETERMINATION Negative Declaration TO: (X) Riverside Co. Clerk/Recorder ( ) Secretary for Resources P.O. Box 751 1416 Ninth St. , Rm 1311 Riverside, CA 92502-0751 Sacramento, CA 95814 FROM: CITY OF PALM DESERT 73-510 Fred Waring Drive Palm Desert, CA 92260 SUBJECT: Filing of Notice of Determination in compliance with Section 21108 or 21152 of the Public Resources Code. Project Title/Common Name: Ahmanson Commercial Development Plan Amended and Restated Development Agreement Date of Project Approval: December 8, 1994 State Clearinghouse Number ( if submitted) : N/A Contact Person: Phil Drell Project Location: South side of E1 Paseo between San Pablo Avenue and Larkspur Lane. Project Description: An amendment of an approved development agreement associated with the Ahmanson Commercial Development Plan incrasing the allowable gross leasable area from 167,000 square feet to 197,000 square feet including 25% restaurant for site area 5, a 10 . 3 acre parcel . This is to advise that the City of Palm Desert has made the following determinations regarding the above described project: 1. The project ( ) will, (X) will riot, have a significant effect on the environment. 2 . An Environmental Impact Report was prepared in connection with this project pursuant to the provisions of CEQA. X A Negative Declaration was prepared for this project pursuant to the provisions of CEQA. A copy of the Negative Declaration may be examined at the above city hall address. 3 . Mitigation measures (X) were, ( ) were not, made a condition of the approval of the project. 4 . A statement of Overriding Considerations ( ) was, (X) was not, adopts for this project. -PI --]�>L _-_ ! 1,___)�� S�'_Vv Swig— u natre Title Date Received for Filing Please return date-stamped copy in the enclosed envelope. . , Attachment 1 California Department of Fish and Game CERTIFICATE OF FEE EXEMPTION De Minimis Impact Finding Project Title/Location (include county) : Ahmanson Commercial Development Plan Amended and Restated Development Agreement, South side of E1 Paseo between San Pablo Avenue and Larkspur Lane, Palm Desert, Riverside County Project Description: An amendment of an approved development agreement associated with the Ahmanson Commercial Development Plan increasing the allowable gross leasable area from 167,000 square feet to 197,000 square feet including 25% restaurant for site area 5, a 10 .3 acre parcel. Findings of Exemption (attach as necessary) : Project site was a previously occupied by a residential development which was cleared and replaced by a temporary parking lot. The site does not contain any wildlife resources. Certification: I hereby certify that the public agency has made the above finding and that the project will not individually or cumulatively have an adverse effect on wildlife resources, as defined in Section 711 .2 of yesh and Code. N A. DIAZ Title: Assistant City Manager/ Director of Community Dev. Lead Agency: City of Palm Desert Date: December 8, 1994 Section 711 .4, Fish and Game Code DFG: 12/90 CEQA3( 1/91) CITY OF PALM DESERT ' DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM TO: City Manager FROM: Assistant City Manager/Director of Community Development DATE: November 16, 1994 SUBJECT: Synopsis of EDAC Meeting 15 November 94 The EDAC in discussing the Via Paseo project was concerned over four issues . 1 . Lack of a guaranteed major department store 2 . The amount being given to the project 3 . The anti-raiding provisions 4 . That the agency or city not have a direct financial stake in the project An attempt was made to explain and clarify the differences between the Development Agreement (DA) and the Development Disposition Agreement (DDA) . I am attaching the motion passed by the EDAC. Some clarification may be in order relating to the amount spent. The committee felt that the amount of assistance could exceed the absolute cost of 200 spaces if it could be demonstrated that there would be sufficient benefit to the city and entire downtown area. While there was discussion related to the anti-raiding, no motion was made on this issue. RAMON A. DIAZ ASSISTANT CITY MANAGER, DIRECTOR OF COMMUNITY DEVELOPMENT/PLANNING /tm Pursuant to the City Council action of November 10 , 1994 , referring the subject project to the EDAC for review and recommendation, the EDAC held a special meeting on November 15 to comply with that request . After extensive discussion with staff and the developer the following motion was unanimously approved . "That the Economic Development Advisory Committee recommend to City Council that it : 1 ) require a major tenant (30 , 000 to 50 , 000 square foot minimum) as an anchor at this site; 2) the City not provide any funding beyond the cost of 200 parking spaces unless it is to benefit the entire downtown area , and; 3 ) asked that City Council consult with the EDAC , El Paseo and other interested groups prior to approving the proposed agreement . " n � � 0i' ' NOWi BEST, BEST & KRIEGER Imv A.AwTH[w NM.INCL—NIII.worn�KlNAL eowroRATloru f 1 4 LAWYERS ARTHUR L.LITTLEWORTM• WYNNE S FURTH JANICE L.WEIS SONIA RUBIO C VALHO SUITE 120 GLEN E.STEPHENS• GENE TANAKA KIRK W.SMITH JOHN O.PINKNE 6Q0 NORTH HAVEN WILLIAM R.DSWOLFE• BASIL T.CHAPMAN JASON D.DABAREINER DEARING D.ENGL "-..m..�,..�.-'-„....."""" BARTON C.GAUT• TIMOTHY M.CONNOR KYLE A.SNOW THEODORE J.GRISWOLD _ LSSY OFFICE SOX 4960 PAUL T.SELZER• VICTOR L.WOLF MARK A.EASTER JULIANN ANDERSON ONTARIO.CALIFORNIA 91764 DALLAS HOLMES• DANIEL E.OLIVIER DIANE L.FINLEY JEFFREY R.THORPE CHRISTOPHER L.CARPENTER- HOWARD S.GOLDS MICHELLE OUELLETTE LORA H.WILSON TELEPHONE(009)OB I-8664 RICHA RD T.ANDERSON• STEPHEN P.DEITSCH DAVID P.PHIPPEN.SR. PATRICIA BYARS CISNEROS TELECOPIER(909)044-1441 JOHN D.WAHLIN• - MARC E.EMPEY SUSAN C.NAUSS JACOUELI KE E.BAILEY MICHAEL D.HARRIS- JOHN R.ROTTSCHAEFER BERNIE L.WILLIAMSON MARK 0.DECKER W.CURT EALY• MARTIN A.MUELLER KEVIN K.RANDOLPH D.ANTHONY RODRIGUEZ JOHN E.BROWN• J.MICMAEL SUMMEROUR JAMES S.GILPIN SUSAN E.DUMOUCHEL OF COUNSEL MI CHA EL T.RIDDELL VICTORIA N.KING MARSHALL S.RUDOLPH JENNWER OLSON OOLAN MEREDITH A.JURY- SCOTT C.SMITH KIM A.SYRENS ALEX ANDRA F.LOPEZ JAMES B.CORISON MICMAEL GRANT- JACK B.CLARKE.JR. CYNTHIA M.GERMANO JULIE ROBERTS FURGERSON C.MICMAEL COWETT FRANCIS J.BAUM• BRIAN M.LEWIS MARY E.GILSTRAP BRUCE W.BEACH ANNE T.THOMAS• BRAOLCY E.NEUFELD GLENN P.SABINE ARLENE PRATER O.MARTIN NETHERY• SHARYL WALKER DIANE C.BLASOEL JOHN C.TOBIN GEORGEM.REYES PETER M.BARMACK DOROTHYL ANDERSON WILLIAM W.FLOYD.JR. MATT H.MORRIS G.HENRY WELLES GREGORY L.HARDKE JEFFREY V.DUNN JAMESR.MARPER KENDALL H.MACVEY STEVEN C.OtBAUN DINA O.HARRIS OFFICES W CLARK H.ALSOP ERIC L.GARNER BARBARA R.BARON RIVERSIDE(606)666N460 DAVID J.ERWIN• DENNIS M.COTA RICHARD T.EGGER MICMAEL J.ANDELSON- PATRICK H.W.F.PEARCE PATRICK D.DOLAN PALM SPRINGS(616)325-7264 DOUGLAS S.PHILLIPS• JEANNETTE A.PETERSON DEAN R.DERLETH RAYMOND BEST(1808-1657) RANCHO MIRAGE(616)666-26N ANTONIA GRAPHOS WILLIAM D.DAMLING.JR. HELENE P.DREYER JAMES H.KRIEGER(1913-1675) SAN DIEGO(616)666.1J3S GREGORY K.WILKINSON ROBERT W.HARGREAVES EMILY P.HEMPHILL EUGENE BEST(16 6 5-16 61) •A PROFESSIONAL CO-0 ATIOM November 10, 1994 To Attached Distribution List Re: City of Palm Desert/Palm Desert Redevelopment Agency/Madison Realty Partnership--Clean and Redline versions of Development Agreement and Disposition, Development and Implementation Agreement Dated November 9, 1994 Dear Ladies and Gentlemen: Enclosed please find the following: 1. Clean and redline versions of the Development Agreement dated November 9, 1994 . 2 . Clean and redline versions of the DDIA dated November 9, 1994 . 3 . Clean and redline versions of the Easement Agreement to be attached as Exhibit "E" to the DDIA. With the exception of possible changes to Exhibit I'D" (Exactions) of the Development Agreement, the enclosed documents reflect the changes agreed to by Jim Grayson, Sheldon Halpern and me. Please call with any questions or comments as soon as possible. The Agency was not able to furnish me with the proposed change to Exhibit I'D" of the Development Agreement prior to the time these documents needed to be sent out. The issue of Madison's KKR42094 LAW OFFICES OF BEST, BEST & KRIEGNMOA November 10, 1994 Page 2 liability to acquire rights of way for certain circulation improvements must be resolved before execution of the documents. For that reason, I will not send final execution copies until that issue has been resolved. In addition, Madison had requested a minimum term of less than thirty (30) years for the Easement Agreement. By copy of this letter, I am requesting the Agency to consider the proposal and advise me of their position. Once again, please advise as soon as possib of any comments. Si ely, Kev n K. a ph of BEST, BEST & KRI R KKR:pko Enclosures cc: David J. Erwin (without enclosures) Steven P. Deitsch, Esq. (without enclosures) KKR42094 DISTRIBUTION LIST VIA FIRST CLASS MAIL Mr. John P. Boorn The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, OH 45202 VIA U.P.S. OVERNIGHT Jim G. Grayson, Esq. Morrison & Foerster 555 West Fifth Street, Suite 3500 Los Angeles, CA 90013 VIA FIRST CLASS MAIL Mr. Ted Lennon Lowe Enterprises 72010 Clancy Lane Rancho Mirage, CA 92270 VIA FIRST CLASS MAIL Mr. Phil Smith Sunrise Company 42-600 Cook Street Palm Desert, CA 92660 VIA FIRST CLASS MAIL Herbert M. Weiser, Esq. King, Weiser, Edelman & Bazar 2049 Century Park East, Suite 900 Los Angeles, CA 90067 VIA U.P.S. OVERNIGHT Sheldon Halpern, Esq. Pircher, Nichols & Meeks 1999 Avenue of the Stars, Suite 2600 Los Angeles, CA. 90067 VIA U.P.S. OVERNIGHT Mr. Ramon Diaz, Director of Community Development Mr. Carlos Ortega, Executive Director Mr. Phil Drell c/o Mr. David Yrigoyen City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 VIA U.P.S. OVERNIGHT Mr. Paul A. Heiss The Madison Realty Partnership, Limited Partnership 2218 Main Street, Suite 208 Santa Monica, CA 90405 f LAW OFFICES OF BEST, BEST & KRIEG November 10, 1994 Page 4 VIA FIRST CLASS MAIL Christine M. Langenfield-Minasian, Esq. Senior Counsel Home Savings of America, FSB 4900 Rivergrade Road Legal Department, Building 515 Mail Code 2160 Irwindale, CA 91706 VIA FIRST CLASS MAIL Mr. Bill Loadvine Ahmanson Commercial Development Company c/o Ahmanson Developments, Inc. 1370 South Valley Vista Drive, Suite 200 Diamond Bar, CA 91765 VIA FIRST CLASS MAIL Donald P. Ries, Esq. Cadwalader, Wickersham & Taft 23rd Floor 660 South Figueroa Street Los Angeles, CA 90017 VIA FIRST CLASS MAIL Mr. Mark Schaffer Executive Vice President Lowe Enterprises, Inc. 11777 San Vicente Blvd. , Suite 900 Los Angeles, CA 90049 KKR42094 t +* NOTICE OF DETERMINATION Ne ative Declaration Super ( )Secretary for Resources TO: (X) Clerk of the Board of Sup 1416 Ninth St. , Rm 1311 County of Riverside Sacramento, CA 95814 4080 Lemon Street Riverside, California 92562 FROM: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 SUBJECT: Filing of Notice of Determination in comRespliance urces with Section 21108 or 21152 of the PubPro 'ect Title/Common Name: AHMANSON COMMERCIALPDEVELOPMENT PLAN DISPOSITION, AND IMPLEMENTATION AGREEMENT Date of Proiect Approval: DECEMBER 20, 1993 State, Clearinghouse Number (if submitted N/A Contact Person. PHIL DRELL Project Location: SOUTHWEST CORNER OF HIGHWAY 111 AND FRED WARING Proi DRIVE Pro 'ect Descri tion: MODIFICATION OF AN APPROVED DISPOSITION, p - DEVELOPMENT AND IMPLEMENTATION AGREEMENT (DDIA) BETWEEN THE AND THE REDEVELOPMENT AGENCY (RDA) AHMANSON COMMERCIAL DEVELOPMENT COMPANY, GENERALLY ASSOCIATED WITH IMPLEMENTATION OF THE AHMANSON COMMERCIAL DEVELOPMENT PLAN, FOR WHICH 8812260 IROWNAMSNTAL IMPACT CERTIFIED REPORT SC NOVEMBER 16 , 1989 . This is to advise that the of Palm Desert has made the arding the above described project following determinations reg 1. The project ( ) will, (X) will not, have a significant effect on the environment. An Environmental Impact Report was prepared in 2 • -- ro visions of connection with this pect pursuant to the pro j CEQA. et pursuant to the ative Declaration was prepared for this pro j c X A Neg A copy of the Negative be°exam examined at thvisions of e .above city hall address. Declaration may NOTICE OF DETERMINATION AHMANSON COMMERCIAL DEVELOPMENT PLAN 1 3. Mitigation measures (X) were, ( ) were not, made a condition of the approval of the project. 4 . A statement of Overriding Considerations ( ) was, (x)was not, adopted for t project. s Assistant City Manager, Director of Community Development Sig ature Title Date Received for Filing (Please return date-stamped copy in the enclosed envelope. ) 2 City ®f Palm Desert 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260-2578 TELEPHONE (619)346-0611 FAX(619)341-7098 NOTICE OF INTENT TO ADOPT A NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT LEAD AGENCY: City of Palm Desert/Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 CONTACT PERSON: Philip Drell ( 619 ) 346-0611 ext. 485 PROJECT TITLE: Ahmanson Commercial Development Plan, Amended and Restated Development and Implementation Agreement and Development Agreement N PROJECT LOCATION: County of Riverside, City of Palm Desert Specifically located on the south side of El Paseo between San Pablo Avenue and Larkspur Lane PROJECT DESCRIPTION: Modification of an approved Disposition, Development and Implementation Agreement (DDIA) between the Palm Desert M Redevelopment Agency (Agency) and the Ahmanson Commercial Development Company and Development Plan between the City of Palm Desert and Ahmanson Commercial Development Company, generally associated with implementation of the Ahmanson Commercial Development Plan, for which an Environmental Impact Report SCH #88122603 was certified November 16, 1989 . The proposed modifications concern the development of Site Area No. 5 originally approved as a 167 ,500 square foot commercial center on the south side of E1 Paseo between San Pablo Avenue and Larkspur Lane. The Development Agreement modifications include: 1 . Increase in Gross Leasable Area (GLA) from 167 ,500 to 197 ,500 . 2 . Permission to include up to 25% of Gross Leasable Area (49 ,250 square feet) of restaurant use. Recycled Paper NOTICE OF INTENT TO ADOPT A NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT Disposition, Development and Implementation Agreement modifications include: 1 . Purchase by the Agency of "Parking Rights" via an easement agreement for 200 public parking spaces to be constructed in addition to those spaces required for the project by the city' s Parking Ordinance . 2 . Preparation of a "Parking Management Plan" insuring efficient operation and management of all of the parking on the Property. Due to time limits mandated by state law your response must be sent at the earliest possible date, but not later than 30 days after receipt of this notice. DATE : Ramon A. Diaz Assistant City Manager/ Director of Community Development LLI LL Ow 4 ol } m 3 UQ 0) m a I m Y 3 0 W w � a - - W J Z W CV J T g N co T M PL _ W Z a rn J GD U N T T I L+ U O � � r Y til N a � � z m CY T Y 3 �♦ 0 _o w _ o w � I 0 LU LU CO a Q N C5 Q � a O N a - -- -17 W W CV 4 ? r —) 3 ax r -4- (h AW --► g Z r �-- J z N J z N r r W i T 3 O 8 � N � z r _ co W I INTEROFFICE MEMORANDUM DE CITY OF PALM DESERT caaMUMD Carl V P..LW,OESERi TO: Phil Drell, Senior Planner FROM: Richard J. Folkers, ACM/Public Works Director SUBJECT: TRAFFIC MITIGATION MEASURES, VIA PASEO SITE - AMENDED LANGUAGE DATE: December 7, 1994 In furtherance of the extended discussion regarding the San Pablo Avenue roadway improvements, the following language is suggested for inclusion as recommended traffic mitigation measures for the referenced project: Reconstruction of San Pablo Avenue between Highway 111 and El Paseo to provide for a combined total of five traffic lanes,- curb and gutter and sidewalk. Any associated traffic signal modifications made necessary by the reconstruction shall be considered included in the reconstruction. Any work outside the existing street right-of-way necessary to accomplish the subject reconstruction, including acquisition of any necessary rights-of-way and private property reconstruction, shall not be considered the responsibility of the project. RIC ARD J. F KERS, P.E.• JSG/ms i r � m x o ._ JY m Z v D � cc cc LO D i "t W r a m N m ng r N rn Tr r m cc \ 8 � D � � r 070 N v m m � I m CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT TO: Planning Commission DATE: October 4 , 1994 PROJECT TITLE: Ahmanson Commercial Development Plan Amended and Restated Development Agreement REQUEST: Approval of a Negative Declaration of Environmental Impact and amendment of an approved Development Agreement associated with the Ahmanson Commercial Development Plan increasing the allowable gross leasable area from 167, 000 square feet to 197 ,000 square feet including 25% restaurant for site area 5, a 10 . 3 acre parcel on the south side of E1 Paseo between San Pablo Avenue and Larkspur Lane. APPLICANT: Madison Realty/Sunrise Co. c/o Philip Smith 42-600 Cook Street Palm Desert, CA 92260 I . BACKGROUND: In 1989 the city approved a Development Agreement and certified an EIR covering the development of four sites within the city's commercial core and one site to be dedicated open space. That agreement led to the development of Town Center Plaza (Trader Joe' s) , Desert Crossing, and the dedication of 55 open space acres west of Desert Crossing. The remaining undeveloped sites include the 12 acres at the southwest corner of E1 Paseo and Highway 111 and the subject site, 10 . 3 acres on E1 Paseo ( formerly the Sunlodge property) . The agreement established development standards, fees and exactions which would be required for the development of each site over the ten year term. Exactions included those improvements required by city ordinance or specified as project specific mitigations in the EIR. The agreement also set forth minimum gross leasable area entitlements for each site which served as the basis for the EIR. Those floor area entitlements were subject to compliance with all applicable zoning and development standards which existed in 1989 . With this amendment the project becomes subject to any standards adopted since 1989 and the ten year term is extended from the new effective date. The original floor area entitlements were simply those proposed by Ahmanson. They were reviewed by staff and to the extent that they were within the range of GLA/site area ratios typically achieved under our ordinances . 'err+ STAFF REPORT AHMANSON DEVELOPMENT AGREEMENT OCTOBER 4, 1994 For site area 5, the entitlement was set at 167,000 to be developed per C-1 zoning standards . The amendment would keep the entitlement at 167,000 but provides for an additional 30,000 square feet for a total of 197 ,000 if Saks Fifth Avenue or a comparable retailer (as determined by the city) is included in the project. The parking requirement would be based upon the C-1 retail 4 per 1000 ratio. Up to 25% of GLA could be devoted to restaurant use without an increase in the parking requirement. An additional 200 parking spaces will be required by the agreement subject to terms included in amended and restated Disposition, Development and Implementation Agreement (DDIA) currently being processed through the redevelopment agency. While the original DDIA provided for RDA reimbursement for the costs of constructing 200 additional spaces, the new agreement specifies the payment of $5,000, 000 for the purchase of a public easement and the creation of a parking management plan. With the additional spaces, the project will be parked at 5 per 1000 . The DDIA will also contain an "anti raiding" section requiring the developer to find suitable replacements for existing businesses within the city which relocate into the new project. II . ANALYSIS : The project ultimately resulting from the development agreement must still comply with all current zoning and development standards . Project specific design analysis will occur when a development application is filed and reviewed as part of the precise plan process . The Development Agreement amendment was therefore analyzed within the context of CEQA to determine whether the increased GLA would significantly increase the impacts identified in the EIR to the point of requiring additional mitigation. The EIR had identified traffic related impacts as the primary effect of the project. The original EIR traffic consultant was directed to repeat the analysis with the increased floor area using the identical methodology employed in the EIR. The EIR traffic analysis based on the 4th Edition of Trip Generation published by The Institute of Transportation Engineers ( ITE) forecast 10,370 daily trips from the original 167,000 square foot project. Subsequently, ITE revised and refined their forecasts in the 5th Edition based on approximately 100 new 2 STAFF REPORT AHMANSON DEVELOPMENT AGREEMENT OCTOBER 4, 1994 shopping center studies . These studies indicated a generally lower traffic generation rate than was previously forecast. While the project floor area will increase 20% from 167 , 000 square feet to 197,000 square feet, traffic generation as forecast by the 5th Edition will increase only 4% to 10,815 when compared to the EIR analysis . This increase does not change the traffic mitigation recommended by the EIR. These include: A. Long-term (Year 2000) Mitigation Measures Highway 111 @ Monterey Avenue-State Route 74 Requires the addition of a second northbound left-turn lane on SR-74 and a second eastbound and westbound left-turn lane on Highway 111 (same as 1989 study) . Requires the addition of a third eastbound and westbound through lane on Highway 111 for a total of six through lanes (three in each direction) . Highway 111 @ San Pablo Convert exclusive eastbound and westbound right-turn lanes on Highway 111 into a third eastbound and westbound through lane one Highway 111 (same as 1989 study) . Highway 111 @ San Luis Rey Re-stripe the northbound approach of San Luis Rey at Highway 111 to provide an exclusive left-turn lane (same as 1989 study) . Requires the addition of a third eastbound and westbound through lane on Highway 111 for a total of six through lanes (three in each direction) (same as 1989 study) . E1 Paseo @ State-Route 74 Re-stripe the northbound approach of State-Route 74 at E1 Paseo to provide a second left-turn lane (same as 1989 study) . B. Project-specific Improvements Highway 111 @ San Pablo Requires the addition of a second northbound through lane on San Pablo at Highway 111 (same as 1989 study) . El Paseo @ San Pablo Avenue Re-stripe the northbound approach of San Pablo at E1 Paseo to provide an exclusive right-turn lane. Restrict on-street 3 STAFF REPORT AHMANSON DEVELOPMENT AGREEMENT OCTOBER 4, 1994 parking on San Pablo adjacent to the project site to provide storage for the right-turn lane. After reviewing the study, the city engineer has recommended the following additional traffic improvements : * Traffic signal operation modifications to provide for 8-phase function with split phasing as an alternative dependent upon Caltrans requirements * Restripe/reconstruct southbound San Pablo Avenue to provide left turn, through and right turn lanes * Modification of existing median left turn pockets at E1 Paseo/San Pablo Avenue and E1 Paseo/Larkspur Lane to provide additional vehicle stacking capacity The entitlement for 25% restaurant use is above the 20% standard which the commission has traditionally used to approve restaurant conditional use permit applications for projects parked according to 4 per 1000 C-1 standards . With the additional 200 spaces, the project ' s parking ratio will fall within a range we have found to be acceptable. III . RECOMMENDATION: The amendment and restated Development Agreement remains consistent with city zoning and development standards, the goals of the Commercial Core Area Specific Plan, General Plan and Certified EIR. Staff recommends adoption of the findings and approval of Planning Commission No. , recommending to city council approval of the Amended and Restated Development Agreement and Negative Declaration of Environmental Impact with additional traffic mitigations identified by the city engineer. IV. ATTACHMENTS: A. Draft resolution B. Development Agreement C. Negative Declaration of Environmental Impact Prepared b � � Reviewed and Approved by° - PD/tm 4 PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT AND AMENDED AND RESTATED DEVELOPMENT AGREEMENT CONCERNING THE COMMERCIAL DEVELOPMENT ON THE SOUTH SIDE OF EL PASEO BETWEEN SAN PABLO AVENUE AND LARKSPUR LANE. PROJECT TITLE: AHMANSON COMMERCIAL DEVELOPMENT PLAN AMENDED AND RESTATED DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 4th day of October, 1994, hold a duly noticed public hearing to consider the request of MADISON REALTY/SUNRISE CO. for approval of an amended and restated development agreement concerning the commercial development on the south side of E1 Paseo between San Pablo Avenue and Larkspur Lane; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the amended project impacts remain consistent with the findings of the previously Certified Environmental Impact Report SCH#88122603 and as mitigated will not have a significant adverse impact on the environment and a Negative Declaration of Environmental Impact has been prepared; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said planning commission did find the following facts and reasons to exist to justify recommending approval of said amended and restated development agreement: The Amended and Restated Development Agreement remains consistent with the goals and objectives of the city' s Zoning Ordinance, Commercial Core Area Specific Plan, and General Plan. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm Desert, California, as follows : 1 . That the above recitations are true and correct and constitute the findings of the commission in this case. 2 . That a Negative Declaration of Environmental Impact Exhibit "A" and the Amended and Restated Development Agreement Exhibit "B" are hereby recommended to the city council for approval . wr PLANNING COMMISSION RESOLUTION NO. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 4th day of October, 1994, by the following vote, to wit: AYES : NOES: ABSENT: ABSTAIN: ROBERT A. SPIEGEL, Chairman ATTEST: RAMON A. DIAZ, Secretary Palm Desert Planning Commission 2 City ®f Palm Desert 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260-2578 TELEPHONE (619)346-0611 FAX(619)341-7098 NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT PURSUANT TO TITLE 14, DIVISION 6 , ARTICLE 7, SECTION 15070 OF THE CALIFORNIA ADMINISTRATIVE CODE PROJECT NAME: AHMANSON COMMERCIAL DEVELOPMENT PLAN DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT AND DEVELOPMENT AGREEMENT APPLICANT: Madison Realty/Sunrise Co. c/o Philip Smith 42-600 Cook Street Palm Desert, California 92260 PROJECT DESCRIPTION: Modification of an approved Disposition, Development and Implementation Agreement (DDIA) between the Palm Desert Redevelopment Agency (Agency) and the Ahmanson Commercial Development Company and Development Plan between the City of Palm Desert and Ahmanson Commercial Development Company, generally associated with implementation of the Ahmanson Commercial Development Plan, for which an Environmental Impact Report SCH #88122603 was certified November 16, 1989 . The proposed modifications concern the development of Site Area No. 5 originally approved as a 167 ,500 square foot commercial center on the south side of E1 Paseo between San Pablo Avenue and Larkspur Lane. The Development Agreement modifications include: 1 . Increase in Gross Leasable Area (GLA) from 167,500 to 197 ,500 . 2 . Permission to include up to 25% of Gross Leasable Area (49,250 square feet) of restaurant use. Disposition, Development and Implementation Agreement modifications include: 1 . Purchase by the Agency of "Parking Rights" via an easement agreement for 200 public parking spaces to be constructed in addition to those spaces required for the project by the city' s Parking Ordinance. Recycled Paper NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT Highway 111 @ San Luis Rey Re-stripe the northbound approach of San Luis Rey at Highway 111 to provide an exclusive left-turn lane (same as 1989 study) . Requires the addition of a third eastbound and westbound through lane on Highway 111 for a total of six through lanes (three in each direction) (same as 1989 study) . El Paseo @ State-Route 74 Re-stripe the northbound approach of State- Route 74 at E1 Paseo to provide a second left-turn lane (same as 1989 study) . B. Project-specific Improvements Highway 111 @ San Pablo Requires the addition of a second northbound through lane on San Pablo at Highway 111 (same as 1989 study) . El Paseo @ San Pablo Avenue Re-stripe the northbound approach of San Pablo at E1 Paseo to provide an exclusive right-turn lane. Restrict on-street parking on San Pablo adjacent to the project site to provide storage for the right-turn lane. 3 . The purchase of parking rights and preparation of a parking management plan will result in positive impacts by addressing existing parking deficiencies within the E1 Paseo area. The Director of the Department of Community Development, City of Palm Desert, has therefore concluded that the described project remains within the scope of the previously certified Environmental Impact Report SCH #88122603 and as mitigated, will not have a significant effect on the environment. There has been no significant changes in the nature of the project or the environment since certification of the EIR. A copy of the project EIR is available in the Department of Community Development/Planning, Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California. A copy of the initial study for the proposed DA and DDIA modification has been attached to document the reasons in support of this finding. 1� /f -------�,��.` DATE: amon A. Diaz 3 NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT 2 . Preparation of a "Parking Management Plan" insuring efficient operation and management of all of the parking on the Property. ANALYSIS OF IMPACTS: 1 . General : Project impacts resulting from the modification will be identical to those identified in the Certified EIR. All mitigation measures identified in the Final EIR for this site area will be applicable to the project. 2 . Traffic Generation: The certified EIR had identified impacts resulting from traffic generation as the primary effect of the project. The EIR traffic analysis based on the 4th Edition of Trip Generation published by The Institute of Transportation Engineers ( ITE) forecast 10,370 daily trips from the original 167,500 square foot project. Subsequently, ITE revised and refined their forecasts in the 5th Edition based on approximately 100 new shopping center studies . These studies have indicated a generally lower traffic generation rate then was previously forecast. While the project floor area will increase 20% from 167,500 square feet to 197,000 square feet, traffic generation as forecast by the 5th Edition will increase only 4% to 10,815 when compared to the EIR analysis . This increase does not change the traffic mitigation recommended by the EIR. These include: A. Long-term (Year 2000) Mitigation Measures Highway 111 @ Monterey Avenue-State Route 74 Requires the addition of a second northbound left-turn lane on SR-74 and a second eastbound and westbound left-turn lane on Highway 111 (same as 1989 study) . Requires the addition of a third eastbound and westbound through lane on Highway 111 for a total of six through lanes (three in each direction) . Highway 111 @ San Pablo Convert exclusive eastbound and westbound right-turn lanes on Highway 111 into a third eastbound and westbound through lane one Highway 111 (same as 1989 study) . 2 'ter►,: Wr 73.510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260 TELEPHONE(619)346-0611 ° INITIAL STUDY E"VIRC 44124E L CI UDMIST I. Backgrcuod o 1. Date CtF7 �, Cf z 2. Case No. H`v✓1C `�v 3� C'C rv►w�t �2� tip ��C`L' �,L- its; 3. Applicant !'iA '1107�r�,-, II. Environmental Impacts (Explanations of all "yes" and "maybe" answers are required on attached sheets.) Yes Maybe No 1. Barth. Will the proposal result in: 0 a. Unstable earth conditions or in changes in geologic substructures? t/ b. Disruptions, displacements, compaction or overcovering of the soil? f c. Change in topography or ground surface relief features? d. The destruction, covering or modification of any unique geologic or physical features? ✓{ e. Any increase in wind or water erosion of soils, either on or off the site? f f. Changes in deposition or erosion of beach sands, or changes in siltation, deposition or erosion which may modify the channel of a river or stream or the bed of the ocean or any bay, inlet or lake? g. Exposure of people or property to geologic hazards such as earthquakes, landslides, mudslides, ground failure, or similar hnrards? 2. Air. Will the proposal result in: Yes bfa.ybe No a. Substantial air emissions or deterioration of ambient air quality? b. The creation of objectionable odors? ,r .Li c. Alteration of air movement, moisture, or temperature, or any change in climate, either locally or regionally? 3. water. Will the proposal result in: a. Changes in currents, or the course of di- rection of water movements, in either marine or fresh waters? b. Changes in absorption rates, drainage pat- terns, or the rate and amount of surface runoff? R/ C. Alterations to the course or low of flood waters? d. Change in the amount of surface water in any water body? e. Discharge into surface waters, or in any alteration of surface water quality, in- cluding but not limited to temperature, dissolved oxygen or turbidity? f. Alteration of the direction or rate of flow of ground waters? g. Change in the quantity of ground waters, either through direct additions or with- drawals, or through interception of an aquifer by cuts or excavations? h. Substantial reduction in the amount of water otherwise available for public water supplies? i. Exposure of people or property to water re- lated hazards such as flooding or tidal waves? ' 4. Plant Life. Will the proposal result in: a. Change in the diversity of species, or num- ber of any species of plants (including trees, shrubs, grass, crops, and aquatic plants)? ' Yes Maybe No b. Reduction of the numbers of any unique, rare or endangered species of plants? c. Introduction of new species of plants into an area, or in a barrier to the normal replenish- ment of existing species? d. Reduction in acreage of any agricultural crop? 5. Animal Life. Will the proposal result in: a. Change in the diversity of species, or num- bers of any species of animals (birds, land animals including reptiles, fish and shell- fish, benthic organisms or insects)? b. Reduction of the numbers of any unique, rare or endangered species of animals? �Y c. Introduction of new species of animals into an area, or result in a barrier to the migra- tion or movement of animals? d. Deterioration to existing fish or wildlife / habitat? ✓ 6. Noise. Will the proposal result in: a. Increases in existing noise levels? r b. Exposure of people to severe noise levels? ?. Light and Glare. Will the proposal produce new light or glare? 8. Land Use. Will the proposal result in a sub- stantial alteration of the present or planned land use of an area? 9. Natural Resources. Will the proposal result in: a. Increase in the rate of use of any natural resources? +✓ 10. Risk of Upset. Will the proposal involve: a. A risk of an explosion or the release of hazardous substances (including, but not limited to, oil, pesticides, chemicals or radiation) in the event of an accident or upset conditions? _ Yes Maybe No b. Passible interference with an emergency response plan or an emergency evacuation plan? LX It. population. Will the proposal alter the location, distribution, density, or growth rate of the human population of an area.? 12. Housing. Will the proposal affect existing hous- ing, or create a demand for additional housing? 13. Transportation/Circulation. Will the proposal result in: a. Generation of substantial additional vehicular movement? b. Effects on existing parking facilities, or demand for new parking? c. Substantial impact upon existing transpor- tation systems? r/ d. Alterations to present patterns of circula- tion or movement of people and/or goods? v ' e. Alterations to waterborne, rail or air traffic? f. Increase in traffic hazards to motor vehicles, bicyclists or pedestrians? 14. public Services. Will the proposal have an effect upon, or result in a need for new or altered gov- ernmental services in any of the following areas: a.. Fire protection? � b. Police protection? c. Schools? � d. Parks or other recreational facilities? ' e. Maintenance of public facilities, including roads? � f. Other governmental services? 15. Energy. Will the proposal result in: a. Use of substantial amounts of fuel or energy? / Yes Maybe No b. Substantial increase in demand upon existing sources or energy, or require the development of new sources of energy? 16. Utilities. Will the proposal result in a need for new systems, or substantial alterations to the following utilities: % 17. Human Health. Will the proposal result in: a. Creation of any health hazard or potential health hazard (excluding mental health)? b. Exposure of people to potential health hazards? L/; 18. Aesthetics. Will the proposal result in the obstruction of any scenic vista or view open to the public, or will the proposal result in the creation of an aesthetically offensive site open to public view? 19. Recreation. Will the proposal result in an impact upon the quality or quantity of existing ' recreational opportunities? ,. 20. Cultural Resources. a. Will the proposal result in the alteration of or the destruction of a prehistoric or historic archaeological site? b. Will the proposal result in adverse physical or aesthetic effects to a prehistoric or 1' historic building, structure, or object? c. Does the proposal have the potential to cause a physical change which would affect unique ethnic cultural values? d. Will the proposal restrict existing religious or sacred uses within the potential impact area? ' 21. Mandatory Findings of Significance. a. Does the project have the potential to degrade the quality of the environment, substantially .reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self sustaining levels, threaten to eliminate a plant or animal community, re- duce the number or restrict the range of a rare or endangered plant or animal or eliminate Yes Maybe No important examples of the major periods of California history or prehistory? ` b. Does the project have the potential to achieve short-term, to the disadvantage of long-term, environmental goals? (A short-term impact on the environment is one which occurs in a rela- tively brief, definitive period of time while long-term impacts will endure well into the future.) c. Does the project have impacts which are ✓ individually limited, but cumulatively con- siderable? (A project may impact on two or more separate resources where the impact on each resource is relatively small, but where the effect of the total of those impacts on the environment is significant.) d. Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? III. Determination On the basis of this initial evaluation: I find that the proposed project ODULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A NEGATIVE DECLARATION WILL BE PREPARED. I find the proposed project MAY have a significant effect on the environment, and an ENVIF04MEVTAL IMPACT REPORT is required. r Date Signature For e LINSCOTT, LAW & GREENSPAN, ENGINEERS TRANSPORTATION PLANNING-TRAFFIC ENGINEERING-PARKING 1580 CORPORATE DRIVE,SUITE 122,COSTA MESA,CALIFORNIA 92626 TELEPHONE:(714)641-1587-FAX:(714)641-0139 PHILIP M.LINSCOTT,P.E. JACK M.GREENSPAN,P.E. WILLIAM A.LAW,P.E. PAUL W.WILKINSON,P.E. August 29, 1994 JOHN P.EAT NG P.E. Mr. Phil Smith, Executive Vice President SUNRISE COMPANY 42-600 Cook Street, Suite 200 Palm Desert, CA 92211 Subject: TRAFFIC IMPACT ANALYSIS (revised per City Comments) El Paseo Center, Palm Desert Dear Mr. Smith: As requested, Linscott, Law & Greenspan, Engineers (LLG) is pleased to submit this updated Traffic Impact Analysis for the proposed retail/commercial center on El Paseo between San Pablo Avenue and Larkspur Lane in the City of Palm Desert. The site's location is part of the previously evaluated Ahmanson Retail Center project sites. A previous Traffic Impact Report for Ahmanson Commercial Development Company, prepared by LLG in October 1989, refers to the El Paseo Center site as Ahmanson Site 7. As discussed with Mr. Joe Gaugush, the 1989 traffic study will serve as the data base for our evaluation. This analysis investigates the potential long-term(Year 2000) traffic impacts of the Proposed Development Plan and compares the traffic forecasts for both the proposed project and the previously Approved Development Plan. The traffic projections for both development "alternatives" have been calculated based on the 4th and 5th Editions of ITE's Trip Generation. The focus of the supplemental traffic analysis is on the AM, Noon and PM peak hour operating conditions at seven signalized intersections in the immediate vicinity of the project. The following seven intersections have been selected as the locations at which to gauge the traffic impact variation associated with the El Paseo Center project since the majority of project-related traffic will flow through these intersections. - Highway 111 @ Monterey Avenue - El Paseo @ San Pablo Avenue - Highway 111 @ San Pablo Avenue - El Paseo @ San Luis Rey - Highway 111 @ San Luis Rey - El Paseo @ Portola - El Paseo @ SR-74/Monterey Avenue OTHER OFFICES:PASADENA TELEPHONE:(213)681.2629-FAX:(818)792-0941 SAN DIEGO TELEPHONE:(619)299-3090-FAX: (619)299-7041 AN LG2WB COMPANY Linscott, Law & Greenspan, Engineers Mr. Phil Smith, Executive Vice President SUNRISE COMPANY August 29, 1994 Page 2 By evaluating these key intersections' Level of Service with and without the proposed project, a more realistic picture of the project-specific traffic impact of the El Paseo Center can be identified. Existing peak hour traffic count data for these study intersections have been provided by the City of Palm Desert Traffic Engineering Department. Briefly, based on our traffic analysis, we conclude that the now-proposed El Paseo Center (Sunrise Company) project will not impact the future traffic conditions at the key study intersections beyond those levels evaluated in the previous 1989 traffic study. All required intersection improvements at the study intersections are the same as the improvements recommended in the 1989 study. The proposed increase in retail floor area will not create additional off-site traffic impacts on the streets surrounding the project beyond those identified in the 1989 study. Our analysis shows that the proposed project will impact the AM, Noon and/or PM peak hour operating conditions at two of the seven study intersections. The traffic generated by the Sunrise Company project will significantly increase the delay (seconds/vehicle) at the Highway 111/San Pablo and El Paseo/San Pablo intersections. However, both intersections are expected to return to acceptable service levels and/or pre-project operating conditions with the implementation of recommended project-specific improvements. These improvements are identified later in the report. OVERVIEW AND PROJECT DESCRIPTION Our supplemental analysis evaluates/comments on the potential off-site traffic impacts of the Proposed Development Plan, versus the Approved Development Plan and uses the prior 1989 traffic study as a "yardstick". Review of the information in our files showed that the description of the Approved Development Plan evaluated in the 1989 traffic study consisted of a 167,000 SF retail/commercial center. The project site is a square-shaped 10.66 acre, parcel of land located on El Paseo between San,Pablo Avenue and Larkspur Lane. The project site was formally zone residential and was 6ccupied by 61 residential units, but is now vacant. Based on our discussions, it is our understanding that the Sunrise Company now proposes to build a 197,500 SF shopping center on Ahmanson Site 7. The proposed project represents a 30,500 SF increase in retail floor area when compared to the approved development intensity of 167,000 SF. Exhibit 1, located at the end of this report, illustrates the general location of the project and shows the surrounding street system within the vicinity of the project. Linscott, Law & Greenspan, Engineers Mr. Phil Smith, Executive Vice President SUNRISE COMPANY August 29, 1994 Page 3 Access to the project site will be provided by driveways (locations to be determined) on San Pablo and Larkspur. Access via El Paseo,which borders the site to the north, and Shadow Mountain on the south, will not be permitted by the City. These restrictions are consistent with the access assumptions made for Ahmanson site 7 in the 1989 traffic study. BACKGROUND DATA As background, the LLG 1989 traffic study identified the potential long-term traffic impacts and mitigation needs of the several proposed Ahmanson Commercial Development Company projects,which consisted of seven project site locations. The traffic forecast in the 1989 traffic study for the Approved Development Plan was based on trip generation equations found in the 4th Edition of Trip Generation, published by the Institute of Transportation Engineers (ITE) [Washington, D.C., 1987]. At the time, the 4th Edition - Trip Generation Manual was used throughout our profession as the basis to forecast project- specific traffic. Since then however,approximately 100 additional trip generation studies of shopping centers have been conducted. Data from those studies have been integrated within the ITE database and the equations refined accordingly. The refined trip generation equations for shopping centers are presented in the 5th Edition of Trip Generation. This updated manual was published by ITE in 1991 and is used today by the traffic/transportation engineering profession to evaluate the potential traffic impacts of currently proposed projects. The traffic forecasts for the current Sunrise Company project description is based on trip generation equations found in the 5th Edition - Trip Generation Manual. As part of the 1989 traffic analysis, the peak hour operating conditions of several intersections, which include the seven study intersections listed previously, were evaluated. The results of the intersection capacity analysis showed four of the seven intersections evaluated in this report needed improvements to off-set the impact of the Ahmanson Retail Projects. TRAFFIC FORECASTING METHODOLOGY Existing Area Traffic Conditions Exhibit 2 presents the existing roadway conditions for the arterials near the project site. The number of through lanes for the existing roadways and existing intersection controls for the key intersections in the project study area are identified. Linscott, Law & Greenspan, Engineers Mr. Phil Smith, Executive Vice President SUNRISE COMPANY August 29, 1994 Page 4 Exhibit 3 presents the existing A.M., Noon and P.M. peak hour traffic volumes for the study intersections evaluated in this report. The traffic data at these locations were acquired from the City of Palm Desert. These volumes will be utilized in support of detailed intersection capacity analyses. Project Trip Generation Table 1, located at the end of this letter, presents a comparison of the traffic generation potential of the now-proposed El Paseo Center project and repeats the forecasts of the 1989 study. In some sense, the prior 1989 traffic forecasts for the Approved Development Plan represents a mitigated trip "budget" for the site from which traffic implications of further refinements to the development plan might be evaluated. Review of the upper portion of Table 1 indicates that the trip generation potential of the approved plan (totalling 167,000 SF of retail/commercial space), based on 4th Edition equations, was previously forecast as 10,370 trips on a daily basis, with 235 trips (165 inbound, 70 outbound) produced in the A.M. peak hour, 855 trips (430 inbound, 425 outbound) produced in the Noon peak hour and 815 trips (400 inbound, 415 outbound) generated during the P.M. peak hour. This forecast was based on the assumption that the project would be developed as one commercial center. The proposed plan, which now totals 197,500 SF and using the current ITE trip generation materials, is forecast to generate 10,815 daily trips, with 245 trips (155 inbound, 90 outbound) produced in the A.M. peak hour, 925 trips (515 inbound, 410 outbound) produced in the Noon peak hour and 1,010 trips (505 inbound, 505 outbound) generated during the P.M. peak hour. Comparison of the trip forecasts show that an increase in peak hour and daily trips can be expected due to the proposed increase in retail floor area. At worse, the net difference in trip generation potential (proposed plan minus approved plan) totals 10 trips in the A.M. peak hour, 70 trips during the Noon peak hour, 195 trips in the P.M. peak hour and 445 trips on a daily basis. ' To identify the potential impact of these additional trips and remain consistent with the 1989 traffic study, the morning, mid-day, and evening peak hour operating conditions at seven study intersections were evaluated. Project Trip Distributions and Assignment The general distribution pattern for the proposed development is presented in Exlubit 4. Project traffic volumes in and out of the site have been distributed and assigned to the Nwoe Linscott, Law & Greenspan, Engineers Mr. Phil Smith, Executive Vice President SUNRISE COMPANY August 29, 1994 Page 5 adjacent street system based upon several considerations: 1) the site's proximity to major traffic carriers ( i.e. Highway 111); 2) expected localized traffic flow patterns based on adjacent street channelization and presence of traffic signals; 3) access/egress availability at the potential site driveways on San Pablo and Larkspur; and 4) project traffic distribution patterns assumed in the 1989 traffic study. Exhibit 5 displays the net added A.M./Noon/P.M. peak hour traffic volumes at adjacent intersections. Please note that the peak hour traffic volumes shown on Exhibit 5 have been adjusted by 30% to account for pass-by trips. This trip reduction factor is consistent with the adjustment factor utilized in the 1989 traffic study. Background Traffic Conditions To provide a forecast of future traffic volumes without the El Paseo Center project, an estimated ambient growth factor of 24% (4% per year to the Year 2000) was applied to each existing movement (1994 count) at the seven key intersections. This annual traffic growth rate is consistent with the growth rate utilized in the 1989 traffic study. It is expected to account for "small projects" inside the study area and regional traffic growth. Exhibit 6 presents Year 2000 ambient traffic conditions. The traffic characteristics of two cumulative projects in the vicinity of the project have also been included in the Year 2000 background traffic conditions. Exhibit 7 presents the forecast peak hour traffic volumes at the seven study intersections for the Year 2000 with the addition of traffic generated by the Desert Crossing project (Ahmanson site 2,3 & 4) and Ahmanson Site 1 project. The now-proposed Desert Crossing project (501,000 SF retail center) is forecast to generate 19,350 daily trips, with 420 trips (265 inbound, 155 outbound) produced in the A.M. peak hour, 1,680 trips (915 inbound, 765 outbound) produced in the Noon peak hour and 1,830 trips (915 inbound, 915 outbound) generated during the P.M. peak hour. Ahmanson Site 1 (100,000 SF retail center) is forecast to generate 4,780 daily trips,with 240 trips (180 inbound, 60 outbound) produced in the A.M. peak hour, 610 trips (295 inbound, 315 outbound) produced in the Noon peak hour and 460 trips (195 inbound, 265 outbound) generated during the P.M. peak hour. Exhibit 8 presents the projected Year 2000 future traffic conditions with the addition of El Paseo Center project traffic. Linscott, Law & Greenspan, Engineers Mr. Phil Smith, Executive Vice President SUNRISE COMPANY August 29, 1994 Page 6 TRAFFIC H PACT EVALUATION METHODOLOGY The relative impact of added project traffic volumes during the A.M., Noon, and P.M. peak hours were evaluated based on the analysis of future operating conditions at seven selected key intersections. At the direction of City staff, operating levels at the key intersections were investigated for existing traffic conditions and Year 2000 traffic conditions. By evaluating these key intersections' existing Levels of Service with and without the Sunrise Company project, a more realistic picture of the project-specific traffic impact can be identified. Intersection Capacity Analysis Table 2 summarizes the peak hour Level of Service results at the seven study intersections. The first column of values (LOS-Delay-V/C ratio) in Table 2 presents a summary of the overall existing AM/Noon/PM peak hour traffic conditions. The second column lists the Year 2000 background traffic conditions based on existing intersection geometry. The third column indicates the Year 2000 background conditions with intersection improvements, if required, recommended to off-set the impact of ambient traffic and cumulative project traffic. The fourth column lists the Year 2000 plus project traffic conditions based on mitigated background intersection geometry. The fifth column indicates anticipated traffic conditions with intersection improvements, if necessary, required to specifically off-set the impact of El Paseo Center project traffic and achieve acceptable LOS or pre-project operating conditions. As shown in Table 2, the four study intersections along El Paseo at State Route 74, San Pablo, San Luis Rey and Portola currently operate at LOS C or better. Examination of the LOS calculation sheets in Appendix A shows that.each intersection currently operates at an acceptable LOS based on the City's "LOS C per intersection approach" criteria. The City of Palm Desert considers LOS C to be the minimum acceptable service level before requiring mitigation. This is not the case for the intersections along Highway 111 at Monterey/State Route 74, San Pablo and San Luis Rey. All three study intersections currently operate at LOS D or better during either the AM, Noon or PM peak hour. Further, close examination of the LOS calculation sheets for these intersections indicate that the City's "LOS C per intersection approach" criteria is not attained. Further review of Table 2 shows that ambient traffic and cumulative project traffic will deteriorate the operating conditions of the three study intersections on Highway 111 and the r El Paseo/SR-74 intersection to unacceptable LOS. The intersections along El Paseo at San l Linscott, Law & Greenspan, Engineers Mr. Phil Smith, Executive Vice President SUNRISE COMPANY August 29, 1994 Page 7 Pablo, San Luis Rey and Portola are expected to continue to operate at LOS C or better in the Year 2000 with the addition of ambient traffic and cumulative project traffic. Improvements recommended to off-set the impact of existing plus background traffic volumes are detailed in the following section. The addition of traffic generated by the current proposed El Paseo Center project is forecast to increase the average peak hour delay of all study intersections. However, only two intersections are significantly impacted and will require improvements to specifically off-set the traffic impact of the proposed project. No significant changes between Year 2000 mitigated background conditions and forecast Levels of Service with project traffic are expected at Highway 111 and Monterey/SR-74, Highway 111 and San Luis Rey, El Paseo and SR-74, El Paseo and San Luis Rey and El Paseo and Portola. However, the Levels of Service and average delay of Highway 111 and San Pablo, and El Paseo and San Pablo Avenue are impacted significantly. Thus, based on City of Palm Desert criteria, project improvements are required to achieve acceptable LOS based on the City's "LOS C per intersection approach" criteria. Review of column 4 of Table 2 shows that both intersections are expected to operate at LOS D in the PM peak hour, but return to acceptable service levels and/or pre-project operating conditions with the implementation of recommended project-specific improvements (See Column 5). AREA TRAFFIC IMPROVEMENTS For those intersections where future traffic volumes are expected to result in poor operating conditions, this report recommends (identifies) improvements which change the intersection geometry to increase capacity. These capacity improvements usually involve roadway widening and/or restriping to reconfigure or add lanes to various approaches of a key intersection. The proposed improvements are expected to off-set the impact of future non- project traffic, as well as El Paseo Center project traffic, and improve Levels of Service to an acceptable range. Long-term (Year 2000) Mitigation Measures The following intersection lane configurations are recommended to support future traffic volumes and mitigate the impact of Year 2000 Background Traffic (existing + ambient + Linscott, Law & Greenspan, Engineers Mr. Phil Smith, Executive Vice President SUNRISE COMPANY August 29, 1994 Page 8 cumulative) and El Paseo Center project traffic. The improvements recommended here are the same as the improvements identified in the Traffic Impact Study prepared for the Ahmanson Commercial Development Company by Linscott, Law & Greenspan, Engineers, dated October, 1989. A subsequent section outlines in detail the project-specific improvement recommendations. • Highway 111 0) Monterey Avenue-State Route 74 Requires the addition of a second northbound left-turn lane on SR-74 and a second eastbound and westbound left-turn lane on Highway 111 (same as 1989 study). Requires the addition of a third eastbound and westbound through lane on Highway 111 for a total of six through lanes (three in each direction). • Highway 111 Cad San Pablo Convert exclusive eastbound and westbound right-turn lanes on Highway 111 into a third eastbound and westbound through lane on Highway 111 (same as 1989 study). • Highway 111 C& San Luis Rev Re-stripe the northbound approach of San Luis Rey at Highway 111 to provide an exclusive left-turn lane (same as 1989 study). Requires the addition of a third eastbound and westbound through lane on Highway 111 for a total of six through lanes (three in each direction) (same as 1989 study). • El Paseo Cad State-Route 74 Re-stripe the northbound approach of State-Route 74 at El Paseo to provide a second left-turn lane (same as 1989 study). Project-specific Improvements The improvements recommended to off-set specifically the impact of El Paseo Center project traffic consists of the following: • Highway 111 C) San Pablo Requires the addition of a second northbound through lane on San Pablo at Highway 111 (same as 1989 study). Linscott, Law & Greenspan, Engineers Mr. Phil Smith, Executive Vice President SUNRISE COMPANY August 29, 1994 Page 9 • El Paseo R San Pablo Avenue Re-stripe the northbound approach of San Pablo at El Paseo to provide an exclusive right-turn lane. Restrict on-street parking on San Pablo adjacent to the project site to provide storage for the right-turn lane. * * * * * * * * * * * * We appreciate the opportunity to be of service on this project. Should you need further assistance, or have any questions regarding this analysis, please call me. Very truly yours, LINSCOTT, LAW & GREENSPAN, ENGINEERS Richard E. 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L0192/9r—� III" \ Lot/ a�� �zot9�rV/stgr-i C -!L �sot/se7ais 2- Wavee-j Ol8yd NVS -sir �r 3Nyl 3NIdM r (/f r nq 0 z 3 C\ o nn II�� N yyO�� 1� N k, w� es Rp �Ry4t W �y �qI 9k Y A3a31NOVi i �t�3� I �• g ZBti/B9Y/QLZ o 0 �gp 0 ba W a Gq'ly�Y Z DDa ___________________________________________________________ (Space above for Recorder's Use Only) AMENDED AND RESTATED DEVELOPMENT AGREEMENT Between THE CITY OF PALM DESERT, CALIFORNIA and THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP Dated: , 1994 KKR41079 DRAFT 09-29-94 LIST OF EXHIBITS Exhibit Designation Description A The Project B The Property C The Phasing Schedule D The Exactions E The Public Facilities F The Disposition, Development and Implementation Agreement G Cooperation Agreement KKR41079 DRAFT 09-29-94 n n n- AMENDED AND RESTATED DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of this day of , 1994, by and between the City of Palm Desert, California, a municipal corporation organized and existing under the laws of the State of California ("City") , and The Madison Realty Partnership, Limited Partnership, a Delaware limited partnership, ("Developer") . RECITALS This Agreement is entered into on the basis of the following facts, understandings and intentions of the parties: A. Government Code Sections 65864 through 65869.5 inclusive (the "Development Agreement Legislation") authorize City to enter into development agreements in connection with the development of real property within its jurisdiction. On August 11, 1983, City enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance") , establishing the procedures and requirements for the consideration of development agreements thereunder pursuant to the Development Agreement Legislation. B. The Developer is the holder of a legal or equitable interest in the Property (as defined in Section 1. 10 below) and is entitled to have filed the application for and to enter into this Agreement. The Developer has purchased the Property from ACD 2, a California corporation (the successor in interest to Ahmanson Commercial Development Company ("ACD") , a California corporation, which was the "Developer" of the Property under the Development Agreement (as defined below) ) . C. The City and ACD have previously entered into that certain Development Agreement dated May 1, 1990 and recorded in the Office of the County Recorder of Riverside County, California on June 20, 1990 as Instrument No. 227140 (the "Development Agreement") , which Development Agreement relates in part to and benefits the Property and the Project (as defined in Section 1.9 below) and by which the City has acknowledged that the development of the Property and the Project as set forth therein is consistent with and in furtherance of the development goals and policies of the City. As of the Effective Date, the terms and conditions of the Development Agreement which are not included in this Agreement shall have no force or effect upon, and shall not be binding upon, Developer or the Property. D. Pursuant to that certain Agreement of Purchase and Sale ("Purchase Agreement") between Developer, as buyer, and ACD 2, as seller, dated May 20, 1994, Developer agreed to purchase the Property from ACD 2 and also agreed to assume all of the obligations and duties which relate to the Property and to accept all rights and interests under the Development Agreement which relate to the Property as the owner and developer of the Property, all as set forth in this Agreement. If this Agreement is entered into prior to close of escrow pursuant to the Purchase Agreement, notwithstanding anything to the contrary set forth herein, this Agreement shall not become effective unless and until such close of escrow occurs, and the Effective Date (as defined in Section 2.1 KKR41079 DRAFT 09-29-94 hereof) will be postponed until such close of escrow occurs, as evidenced by the recordation of a deed conveying the Property to Developer. E. The Project consists of the development of the Property. The Project will require a major investment by the Developer in public facilities and a substantial investment by the Developer in on-site and off-site improvements. The Project has been analyzed and reviewed by the City in light of the land use standards and policies embodied in the Existing Land Use Ordinances (as defined in Section 1.5 below) . F. The City has determined that the development of the Project as contemplated by this Agreement is consistent with and in furtherance of the development goals and policies of the City as set forth in the City's General Plan and the existing Palm Desert Commercial Core Area Specific Plan initially adopted by the City on July 23 , 1987, and the objectives, policies, general land uses and development programs set forth therein. G. City has determined that the execution of this Agreement by the City and the Developer will effect the assumption by the Developer of the duties and obligations and the acceptance by the Developer of the rights and interests with respect to the Property under the Development Agreement as described above and set forth herein and will further the goals and objectives of the City's land use planning policies by, among other things, eliminating uncertainty in planning for and securing orderly development of the Project so that adequate long-term plans regarding the provision of necessary infrastructure can be KKR41079 DRAFT 09-29-94 -3- developed and implemented, and ensuring the maximum effective utilization of resources within the City at the least feasible economic cost to its citizens. The benefits conferred on City by Developer herein will (i) facilitate the installation of certain vital public improvements; (ii) improve traffic circulation patterns within the City; and (iii) further the development objectives of the City in an orderly manner, all of which will significantly promote the health, safety and welfare of the residents of the City. In exchange for these benefits to the City, Developer desires to receive the assurance that it may proceed with the Project in accordance with the Existing Land Use Ordinances and at a rate of development of its choosing, subject to the terms and conditions contained in this Agreement. H. In order to effectuate the foregoing, the parties desire to enter into this Agreement in order to amend and restate in its entirety the Development Agreement with respect to the Property. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Definitions. 1. 1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1.2 Building Ordinances. Those building standards, of general and uniform application throughout the City and not imposed KKR41079 DRAFT 09-29-94 -4- solely with respect to the Property, in effect from time to time that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.3 Enacting Ordinance. Ordinance No. , enacted by the City Council on , 1994, approving this Agreement. 1.4 Exactions. All exactions, in-lieu fees or payments, assessments, dedication or reservation requirements, obligations for on-site or off-site improvements, construction requirements for public improvements, facilities, or services called for in connection with the development of or construction on the Property, whether such requirements constitute subdivision improvements, any conditions of approval relating to any fees, charges, or dedications imposed by the Subdivision Map Act or any implementing local ordinance, mitigation measures in connection with environmental review of any project, or impositions made under any applicable ordinance or in order to make a project approval consistent with the City's General Plan. Exactions do not include Processing Fees. 1. 5 Existing Land Use Ordinances. The Land Use Ordinances in effect as of May 1, 1990. 1.6 Reserved. 1.7 Land Use Ordinances. "Land Use Ordinances" means all resolutions, codes, rules, regulations and official policies of City legally adopted in accordance with all applicable laws governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of KKR41079 DRAFT 09-29-94 -5- use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes and all Exactions, the phasing or timing of development, and the design, improvement and construction and initial occupancy standards and specifications applicable to the development of the Property as they may be modified by the Development Approvals. "Land Use Ordinances" do not include any City resolution, code, rule, regulation or official policy, governing: (a) The conduct of businesses, professions, and occupations; (b) Other than as provided in this Agreement, taxes and assessments of general application upon all residents of the City, provided that the taxes and assessments are not imposed for the purpose of taxing the right, power or privilege of developing or improving land (e.g. excise tax) or to directly finance the construction or maintenance of any public improvement in respect of which Developer is paying any fee or providing any improvement pursuant to Section 4 hereof; (c) The control and abatement of nuisances; (d) The granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; KKR41079 DRAFT 09-29-94 -6- (d) The exercise of the power of eminent domain. 1.8 Mortgage. A mortgage, deed of trust, sale and leaseback arrangement in which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which all or a part of the Property, or an interest in it, is pledged as security, contracted in good faith and for fair value. 1.9 Processing Fees. "Processing Fees" means the normal and customary application, filing, plan check, permit fees for land use approvals, design review, tree removal permits, building permits and other similar permits and entitlement, and inspection fees, which fees are charged to reimburse the City's expenses attributable to such applications, processing, permitting, review and inspection and which are in force and effect on a general basis at such time as said approvals, permits, review, inspection or entitlement are granted or conducted by City. 1. 10 Project. The commercial/retail development and associated amenities, and on-site and off-site improvements, as described in Exhibit "A", intended to be constructed on the Property, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement. 1. 11 Property. That real property which is described in Exhibit "B". 1.12 Reservations of Authority. "Reservations of Authority" means the rights and authority excepted from the assurances and rights provided to Developer under this Agreement KKR41079 DRAFT 09-29-94 -7- and reserved to City including, without limitation, those rights and authorities described in Section 3.7 of this Agreement. 1.13 Certain Other Terms. Certain other terms shall have the meanings set forth for such terms in this Agreement. 2. Effective Date; Term; Amendment. 2. 1 Effective Date. This Agreement has been entered into by the parties as of the date and year first above written, and, except as otherwise provided.herein, shall be effective as of such date (the "Effective Date") , uns> uchffecte Date is st: . :;;;:::>::::: rov de .:;.;:.;>;>;' : ;;:.;;;;;' >::>:< : :!';; ::;::::> ::..:::::::::::::: ...:.:::::::::::::::::::d:.;.:;::: :::::::: e.ca3:;:;:::::::::. .:::<:.:'::::tf.:::: h :::::.: i reemer�t: : P..........................:.::._.::::::.:.::.::._.:::........................................:.:::::::::::::::::::...... ::::::::::.:.. : ..... ...................... I st r thstand ng anyth n ....art th y.....; , reeme t.;:< r;>< he ibis . ssit ttn . :":{.i:iiiiiiii•.'4i:;{.i:(...ii•.i::ii•i;:::!!i:!v<•i:•::?'•?.i::....iii}isi•:"is!•:•;.;rr.?:.i:;.iJi:'.i}ii:.i.v4:.............::::•.::::�:::::.�::::::::: :..�::.:::::::::.:..w::;:.::::::..::::::.:::v;................................................. �e��Io o reenent tc� the. t�ntra:. f:;:.e:scrrs�t has no Qst uuntQ...the purcha:s :> ezae > '.a dei'ined€€ .... : ? .:.::............. : :: ::::..::....:::::::::::::::::g..:.:::::::::::::::::........ ... :::: . . :.::: : : : : :::.: :..:::»: :.... .:. :.. .. :...:....::: ...:.:...:::. ..... ........................::.ao...:.u.:e ::::;:w th.in:::s. ><:>:::: .::<::.: cQnths:::::: .c:1 >rw<:. ' :::<::> ' ::;: :•.:: Agreement s execute pry::.:..:b the . ,:>.:.:tn>::::;this Aax reemnt:»:: shaft. . automatically t®rminate aid shall:; nah becoe ;gfectiv and = i ie h itin as they wou3d ave be.-n,heret par, m o ......................... he execution Qf this Agreement. 2 .2 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on May 1, 2000, unless sooner terminated or extended as hereinafter provided. 2 .3 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits. No consent to any such amendment shall be required from any party to the Development Agreement other than the City. Any amendment to this Agreement or the Exhibits as provided herein KKR41079 DRAFT 09-29-94 -8- Nme shall be effected only upon compliance with the procedures for amendment, if any, required by the Development Agreement Legislation and the Development Agreement Ordinance and only upon receipt of the written consent of the Palm Desert Redevelopment Agency. The City shall, after any such amendment takes effect, cause an appropriate notice of such amendment to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne equally by the parties to this Agreement. 3. General Development of the Project. 3. 1 Project. (a) The Project is defined and described in Exhibit "A", which specifies for the purposes of this Agreement all of the following aspects of the Project: (i) proposed uses of the Property, (ii) the maximum height and square footage of buildings to be constructed on the Property, (iii) density and intensity of use of the Property, (iv) requirements for the construction or provision of on-site and off-site improvements; and (v) requirements for reservation or dedication of portions of the Property for public purposes. (b) Except as otherwise expressly provided in Exhibit "A" and further provided in Section 4.,2 below, Developer shall have the right to develop the Project in accordance with, and development of the Project during the Term shall be governed by, the Existing Land Use Ordinances, subject to the Reservations of Authority. However, Developer shall not be obligated to develop the Project. KKR41079 DRAFT 09-29-94 -9- 3.2 Project Timing. The parties acknowledge that Developer cannot at this time predict when or the rate at which the Project will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereto acknowledge and expressly agree that Developer is hereby granted by the City the vested and guaranteed right to develop the Project in such manner and at such rate and at such times as Developer deems appropriate within the exercise of its sole subjective business judgment. Therefore, City expressly agrees that Developer shall be entitled to apply for maps, building permits, occupancy certificates and other entitlement for its use at any time, provided that such application is made in accordance with the Existing Land Use Ordinances, subject to the Reservations of Authority and that the development and/or construction of the Project contemplated or authorized by such maps, building permits, occupancy permits and other entitlement is otherwise in conformity therewith. 3 . 3 Buildings Permits and Other Approvals and Permits. Subject to (a) Developer's compliance with this Agreement, the Existing Land Use Ordinances and the Building Ordinarices, and (b) payment of Processing Fees or similar fees and charges of general application, City shall process and issue to Developer promptly upon application therefor all necessary use permits, building permits, occupancy certificates, and other required permits for the construction, use and occupancy of the Project, or any portion KKR41079 DRAFT 09-29-94 -10- thereof, as applied for, including connection to all utility systems under the City's jurisdiction and control (to the extent that such connections are physically feasible and that such utility systems are capable of adequately servicing the Project) . 3.4 Procedures; Limitations on Exactions. The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Agreement and the Exhibits hereto, and to the extent not inconsistent therewith, the Existing Land Use Ordinances, subject to Reservations of Authority, but the procedures for processing applications for such permits or approvals (including the usual and customary fees of general application charged for such processing) shall be governed by such ordinances and regulations as may then be applicable. Notwithstanding the foregoing, or anything to the contrary otherwise contained herein, there shall not, except as otherwise specifically provided herein, be imposed upon the Project any Exactions other than those set forth in Exhibit "D", nor shall the fees and charges for the Exactions exceed those set forth in Exhibit "D" (to the extent set forth in Exhibit "D") or those charged pursuant to the Existing Land Use Ordinances (to the extent not set forth in Exhibit "D") . 3 .5 Effect of Agreement. This Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to specified and known criteria and rules as set KKR41079 DRAFT 09-29-94 -11- fir✓ forth in Exhibit "A" and the Existing Land Use Ordinances, subject to the Reservations of Authority, and to grant City and the residents of the City certain benefits which they otherwise would not receive. This Agreement shall be binding upon the City and its successors in accordance with and subject to its terms and conditions notwithstanding any subsequent action of the City, whether taken by ordinance or resolution of the City Council, by initiative, or otherwise. The parties acknowledge and agree that by entering into this Agreement and relying thereupon, the Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to proceed with its development of the Project in accordance with the proposed uses of the Property, the maximum height and size of buildings to be constructed on the Property, the density and intensity of use of the Property and the requirements for the construction or provision of on-site and off- site improvements and the reservation or dedication of land for public use, if and to the extent set forth in Exhibit "A", and in accordance with the Existing Land Use Ordinances, subject to the Reservations of Authority, and the City has entered into this Agreement in order to secure the public benefits conferred upon it hereunder which are essential to alleviate current and potential problems in the City and to protect the public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. The parties acknowledge that: (a) the City has entered into this Agreement pursuant to the Development Agreement KKR41079 DRAFT 09-29-94 -1 2- Legislation and its police power in order to address public health and safety and general welfare concerns including those relating to the amount, density, intensity and timing of development within the Property and the need for public facilities and infrastructure in connection with the Property and other property in the area; and (b) as, and to the extent contemplated in the Development Agreement Legislation, there is certain authority under the police power to address public health and safety concerns that cannot be legally relinquished or restricted by this Agreement and that in addition to the Reservations of Authority, the City subsequent to the Effective Date may exercise such authority by the adoption of rules, regulations, and policies which may be applicable to the Project and/or the Property, but which do not conflict with the terms and intent of this Agreement as determined in the manner and in accordance with the standards set forth below. For the purposes of this Agreement any such rule, regulation or policy shall not be deemed to conflict with the terms and intent of this Agreement if the same does not: (i) modify the permitted types of land uses, the density or intensity of use, the maximum height or size of proposed buildings on the Property, or impose requirements for the construction or provision of on-site or off-site improvements or the reservation or dedication of land for public use, or the payment of fees or the imposition of Exactions, other than as are in each case specifically provided for in this Agreement; or (ii) prevent the Developer from obtaining all necessary approvals, permits, certificates or other entitlement at KKR41079 DRAFT 09-29-94 -13- such dates and under such circumstances as the Developer would otherwise be entitled under this Agreement; or (iii) prevent or inhibit the Developer from commencing, prosecuting and finishing on a timely basis the construction and development of the Project and the satisfaction of its obligations hereunder in the manner and as contemplated by this Agreement; or (iv) increase the cost of the construction or development of the Project, or the construction or provision of any public improvements to be provided by the Developer as contemplated herein, or the reservation or dedication of land for public purposes, or increase the cost of selling, financing or leasing the Project or any portion thereof. 3 .6 Operating Memoranda. Developer and City acknowledge that the provisions of the Agreement require a close degree of cooperation between Developer and City, and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the parties under the Agreement in order to effectuate the purpose of the Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall confer in good faith with respect to such changes or provide for such additional provisions through operating memoranda to be considered in good faith by the parties, which, if approved, shall be attached hereto as addenda and become KKR41079 DRAFT 09-29-94 -14- a part hereof, and may be further changed or supplemented from time to time as necessary, with further good faith approval of Developer and City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda does not require the amendment of this Agreement in the manner provided in Section 65868 of the California Government Code, then no such operating memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement; and in the case of City such operating memoranda may be acted upon by its Community Development Director. Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any of the rights, duties or obligations of the parties hereunder or the provisions of this Agreement. 3.7 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following shall apply to the development of the Property: (a) Processing Fees imposed by City to cover the estimated or actual costs to City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, which fees are charged to reimburse the City's expenses attributable to such applications, processing, permitting, review and inspection and which are in force and effect on a general basis at such time as said approvals, permits, review, inspection or entitlement are granted or conducted by City. KKR41079 DRAFT 09-29-94 -15- Iwo (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. (c) Regulations, standards, policies and rules governing the engineering and construction of private or public improvements including, without limitation, any and all uniform codes adopted by the City, including local amendments to those codes adopted pursuant to state law allowing for such amendments; provided that such codes are uniformly applied to all new development projects of the same uses within the City. Such codes include without limitation, the City's Uniform Housing Code, Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Building Security Code. City agrees that such standards, regulations, policies and rules shall be those applied on a City- wide basis to all development projects of a similar type as the Project. (d) Regulations which are reasonably necessary to protect the residents of the Project or of the immediate community, or both, from a condition perilous to their health or safety, or both; provided, however, the following shall apply: (i) That to the extent possible, such regulations shall be applied and construed so as to provide Developer with the rights and assurances provided in this Agreement; and KKR41079 DRAFT 09-29-94 -16- That such regulations apply uniformly to all new development projects of the same uses within the City; and (iii) That the City Council finds, based on substantial evidence, that such regulations are necessary to eliminate or reduce a public danger perilous to the health or safety of the residents of the Project or of the immediate community. (e) Regulations which do not conflict with the terms and intent of this Agreement. Any Land Use Ordinance limiting the rate or timing of development of the Property shall be deemed to conflict with the terms and interest of this Agreement and shall therefore not be applicable to the development of the Property unless otherwise permitted by the Reservations of Authority. (f) Regulations which are in conflict with the terms and intent of this Agreement provided Developer has given written consent to the application of such regulations to development of the Property. 4. Specific Criteria Applicable to Development of the Project. 4. 1 Applicable Ordinances. Except as set forth in Exhibit "A" and subject to the provisions of Section 4.2 below and the Reservations of Authority, the Existing Land Use Ordinances shall govern the development of the Property hereunder and the KKR41079 DRAFT 09-29-94 -1 7- it granting or withholding of all permits or approvals required to develop the Property. 4.2 Amendment to Applicable Ordinances. In the event that the Palm Desert zoning ordinance is amended by the City in a manner which provides more favorable site development standards .than those in effect as of the Effective Date, Developer shall have the right to notify the City in writing of its request to be subject to all or any such new standards for the remaining term of this Agreement. If City approves such request, which approval shall be in the City's reasonable discretion, by resolution of the City Council or by action of a City official whom the City Council may designate, such new standards shall become applicable to the Property. Should City thereafter amend such new standards, upon the effective date of such amendment, the original new standards shall continue to apply to the Property as provided above, but Developer may notify City in writing of its desire to be subject to all or any such amended new standards and City may agree in the manner above provided to apply such amended new standards to the Property. 4 . 3 Easements; Abandonments. City shall cooperate with Developer, at Developer's sole cost, expense and liability, in connection with any arrangements for abandoning existing utility or other easements and the relocation thereof or creation of any new easements within the Property necessary or appropriate in connection with the development of the Project; and if any such easement is owned by City, City shall at the request of Developer and in the manner and to the extent permitted by law, process and consider such action as may be necessary to abandon existing KKR41079 DRAFT 09-29-94 -18- easements and relocate them, as necessary or appropriate in connection with the development of the Project, all at the cost and expense of the Developer. 5. Public Benefits. 5.1 [Reserved] 5.2 Pa lm Desert Redevelopment Agency. Developer and the Palm Desert Redevelopment Agency ("Agency") have entered into that certain Amended and Restated Disposition, Development and Implementation Agreement (the "Disposition and Development Agreement" or "DDIA") attached hereto as Exhibit "F" which pertains to the Property. Developer and City acknowledge that said Disposition and Development Agreement provides for the terms, conditions and requirements with respect to the construction of the Minimum Site Improvements (as defined in the DDIA) by the Developer and the payment to Developer by the Agency of the Purchase Price (as defined in the DDIA) for the Parking Rights (as defined in the DDIA) . City and Developer agree that the manner and timing ei the-ee uetlen e€- the—Minimum Site imprevements and the payment to Developer of the Purchase Price shall be controlled in all respects by said DDIA and that in the event of any inconsistency between the provisions thereof and of this Agreement in connection with the manner er taming—ersueh Bens ruetlen - ... eeeneet-rein such payment, the provisions of the DDIA shall be deemed to control. City agrees that the performance by the Developer of its obligations under said DDIA shall constitute the performance and satisfaction of its corresponding obligations hereunder. 5.3 [Reserved] KKR41079 DRAFT 09-29-94 -19- 5.4 [Reserved. ) 6. 6. Review for Compliance. 6.1 Periodic Review. The Community Development Director or his or her designee shall review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by Developer with the terms of the Agreement. Developer shall submit an Annual Monitoring Report, in a form acceptable to the Community Development Director or his or her designee, within 30 days after written notice from the Community Development Director or his or her designee. The Annual Monitoring Report shall be accompanied by an annual review and administration fee, in an amount consistent with then-existing City fee schedules and resolutions, sufficient to defray the estimated costs of review and administration of the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the City Council. Neither City nor Developer shall have a duty to notify the other of their respective obligations hereunder and the City's failure to so conduct such annual reviews shall not affect the rights, protection, and benefits afforded Developer by the Development Agreement Legislation and this Agreement shall remain subject to the Development Agreement Legislation. 6.2 Special Review. The Planning Commission or City Council may order a special review of compliance with this Agreement at any KKR41079 DRAFT 09-29-94 -20- err•' time. The Community Development Director or his or her designee shall conduct such special reviews. 6.3 Procedure. (a) During either a periodic review or a special review, Developer shall be required to demonstrate good faith compliance with the terms of the Agreement. The burden of proof on this issue shall be on Developer. (b) Upon completion of a periodic review or a special review, the Community Development Director or his or her designee shall submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by Developer with the terms of this Agreement and his/her recommended finding on that issue. (c) If the Planning Commission finds on the basis of substantial evidence that Developer has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded. (d) If the Planning Commission makes a preliminary finding that Developer has not complied in good faith with the terms and conditions of this Agreement, the Planning Commission may commence proceedings to terminate this Agreement under Section 6. d Section 4 an S 1on 6.5. Notice of default f It .>�s<.>.:.:<"o �n� KKR41079 DRAFT 09-29-94 -2 1- as provided under Section 8.4 of this Agreement shall be given to Developer prior to or concurrent with proceedings under Section 6.4 and Section 6.5. (e) Failure . to comply with the terms or conditions of this Agreement by reason of interference caused by acts of God, labor disputes, inability to procure materials due to a general shortage of labor or materials in the normal channel of trade, delay in transportation, delay in inspections, City's breach hereunder or any other cause beyond the reasonable control of Developer, whether similar or dissimilar to the foregoing, shall not constitute a failure of good faith compliance with the terms and conditions of this Agreement. Notwithstanding the foregoing, however, the inability of Developer to obtain or maintain financing necessary to allow for the Development of the Project shall not be deemed an excuse for the Developer's failure to comply with the terms and conditions of this Agreement. 6.4 Proceedings Upon Medifsea ; m _r Termination. If, upon a finding under Section 6.3 (d) , the Planning Commission determines to proceed with ned f eat en _r termination of this Agreement, the Planning Commission shall give written notice to Developer of its intention so to do. The notice shall be given at least ten calendar days prior to the scheduled hearing and shall contain: (a) The time and place of the hearing; KKR41079 DRAFT 09-29-94 -2 2- (b) A statement as to whether or not the Planning Commission proposes to terminate or to modify the Agreement; and, (c) Such other information as is reasonably necessary to inform Developer of the nature of the proceeding. 6.5 Hearing on Modification or Termination. At the time and place set for the hearing on medifleatien or termination, Developer shall be given an opportunity to be heard. Developer shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on Developer. If the Planning Commission finds, based upon substantial evidence, that Developer has not complied in good faith with the terms or conditions of the Agreement the Planning Commission may terminate this Agreement. er %edify this Agreement the interests of the-,-- t-1-= Developer may appeal any determination of the Planning Commission made pursuant to this Section 6.5 to the City Council in accordance with the City Municipal Code as amended or substituted. The decision of the City Council shall be final, subject eftly to judicial review. pursuant te-Seetien 1894-. 5 of ti� Gede of Givil Preee ur [Developer requests cure period following adverse judgment. ] 6. 1 Certificate of Agreement Compliance. If, at the conclu- sion of a Periodic or Special Review, Developer is found to be in compliance with this Agreement, City shall, upon request by KKR41079 DRAFT 09-29-94 -23- Developer, issue a Certificate of Agreement Compliance ("Certificate") to Developer stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) Developer is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the certificate is issued after a Periodic or Special Review, and shall state the anticipated date of commencement of the next Periodic Review. Developer may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or Developer, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the City. 7. Permitted Delays; Supersedure by Subsequent Laws. 7. 1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts of God or civil commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation, acts or neglect of the other party, any referendum elections held on the Enacting Ordinance d'> a KKR41079 DRAFT 09-29-94 -24- or the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, permits or other entitlement related thereto, or restrictions imposed or mandated by governmental or quasi-governmental entitiesesra `Q : enactment o f conflicting provisions of the Constitution or laws of the United States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws") , orders of courts of competent jurisdiction, or any event or circumstance giving rise to a permitted delay under the terms of the Disposition -and Develo went ><adtt' etieta P :::: P :: .: ::::::.::::::::.F.:::::::::::::::.:::::::::::::::.:::::::. ............................................................................ ............................................................................ Agreement (to the extent that the Developer's performance under this Agreement is impacted thereby) , or any other cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. Each party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The time of performance of such obligations, and, at Developer's request, the Term of this Agreement, shall be extended by the period of any delay hereunder, provided not to exceed in any event ere <E: 1-41' [Check with City] ................................... .................................. ................................... years following the Effective Date. Notwithstanding anything in this Agreement to the contrary, the inability of Developer to obtain or maintain financing necessary for the development of the Project shall not be cause for an extension of time for performance or of the Term of this Agreement. KKR41079 DRAFT 09-29-94 -25- 7.2 Supersedure of Subsequent Laws or Judicial Action; Termination of the Development Agreement. The provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with any new Law or decision issued by a court of competent jurisdiction (a "Decision") , enacted or made after the Effective Date which prevents or precludes compliance with one or more provisions of this Agreement. Immediately after enactment of any such new Law, or issuance of such Decision, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 7. 1 above, for a period of time equal to the length of time the challenge was pursued. If, following such meetings with the City or the failure of any challenge to such new Law or Decision by either the City or Developer, the Developer determines in its sole reasonable business judgement that a modification or suspension of the terms or conditions of this Agreement is infeasible, the Developer shall have the right to terminate this Agreement by giving written notice to the City. KKR41079 DRAFT 09-29-94 -26- Subject to the provisions of Section 3.5 and the Reservations of Authority, nothing set forth in this Article 7 shall be construed to permit the City to enact a Law which conflicts with the terms or intent of this Agreement. 8. DEFAULT AND REMEDIES. 8. 1 Remedies in General. It is acknowledged by the parties that City would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that City shall not be liable in damages, including, without limitation, attorneys' fees and litigation costs, to Developer, or to any successor in interest of Developer, or to any other person, except as otherwise expressly provided in this Section 8. 1, and Developer covenants not to sue for damages or claim any damages: (a) For any breach of this Agreement,or for any cause of action which arises out of this Agreement; or (b) For the impairment or restriction of any right or interest conveyed or provided under, with, or pursuant to this Agreement, including, without limitation, any impairment or KKR41079 DRAFT 09-29-94 -2 7- restriction which Developer characterizes as a regulatory taking or inverse condemnation; [Developer requests deletion] or (c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. Further, nothing contained herein shall modify or abridge Developer's rights or remedies (including its rights for damages, if any) resulting from the exercise by City of its power of eminent domain; provided, however, that such exercise results in a physical occupation of the.Property or portion thereof. Except as set forth in the preceding sentence, Developer's remedies shall be limited to those set forth in this Section 8.1 and Section 8.2. [Developer requests mutual waiver at least, prefers not to waive money damages. ] 8.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate, and specific performance and other non-monetary relief, including temporary and permanent injunctive relief sr >idau are particularly appropriate remedies for the enforcement of this Agreement and should be available to all Parties for the following 'reasons: (a) Money damages are unavailable against the City except as provided in Section 8. 1 above. KKR41079 DRAFT 09-29-94 -28- *400 (b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Developer may be foreclosed from other choices it may have had to utilize the Property or portions thereof. Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Developer for such efforts; the parties acknowledge and agree that any injunctive relief may be ordered on an expedited, priority basis. 8 .3 Release. Except for nondamage remedies, including the remedy of specific performance and judicial review as provided for in Section 6.5, Developer, for itself, its successors and assignees, hereby releases the City, its officers, agents and employees from any and all claims, demands, actions, or suits or any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the City KKR41079 DRAFT 09-29-94 -29- because it entered into this Agreement or because of the terms of this Agreement. 8.4 Termination er ____________- for Default of Developer. City may terminate or modify this Agreement for any failure of Developer to perform any material duty or obligation of Developer under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default") ; provided, however, City may terminate ermedify this Agreement pursuant to this Section only after providing written notice to Developer of default setting forth the nature of the default and the actions, if any, required by Developer to cure such default and, where the default can be cured, Developer has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default. The rights of the City pursuant to this Section 8.4 are cumulative with and independent of the City's rights under Section 6 of this Agreement. 8.5 Termination of Agreement for Default of City. Developer may terminate this Agreement only in the event of a default by City in the performance of a material term of this Agreement and only after providing written notice to City of default setting forth the nature of the default and the actions, if any, required by City to KKR41079 DRAFT 09-29-94 -30- cure such default and, where the default can be cured, City has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default. 8. THIRD PARTY LITIGATION. 8. 1 General Plan Litigation. City has determined that this Agreement is consistent with its Comprehensive General Plan, herein called General Plan, and that the General Plan meets all require- ments of law. Developer has reviewed the General Plan and concurs with City's determination. City 6r' eve3or shall have no liability under this Agreement for any failure of City to perform under this Agreement or the inability of Developer to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law. 8.2 Third Party Litigation Concerning Agreement. De e eper --r-- shall defend, t its emp-se, i neluding atterneys' fees, indemnify-, and theld-h3rmless-E^-j , As agents, -_______ ----' =~"r--1 --- -- -_" any KKR41079 DRAFT D9-29-94 -3 1- elalfa, aet}en er preeeedingaga-inst e tj, itscents, eFF empleyees-te attae}e, set aside, ems--annu! the-appreva of this Agreement-er the apprevalef L-t-granted pursuant-ta- Agreement. Gi-ty shall premptly-netij ^veleper of any such claim, a eti en er pre eeeding, and elt -sue-ee eperate in-the-defense. Gi 1 falls te-p etify $eveleper a€-any sueh e-la-, aet erneeeeding,er- If Gity €ais—te eeeperat-e—in—the defense, Develeper shall net thereafter be respensible te defend, indemnify er held harmless G it . elty may in its dis eret-ien parse-lpate Xie the de€ense-efany sueh--elaim,aetten--erg�eeeed-i��< >t `± thatan ;>:::€act icsn....o •... r: edfn :»: : ::» ,.:.:...........::;;.. .:...:...:..:..:....:>:::... ..:.. ... ...._..................... .....:....:..:......:............ .... .....00 ........ ...... ....:� ::::broth; ht:::;<: ► .>::>:. ::. ;>::::; .srson:::::;or:;:»snt Y ::.::..:. p. ::::: . . :: ........... . .. ................ ............ ..... ..................................................... .. ::.::.::::::::.::.::....:............:..::.,...........,,.,,................................................................:::.::::::...:.... rt ..:P..::..:..:.......:................................... art .......to.....tas:::::> i ree ►ent a ainst:::<:ahe:::<::: at ;> <:<:<<:eta....a ants ::.:::.::..:.::....................... ............:...............::...:.......... :::..::::. .,:.::::.:................... ................:. :.i:.:::...::...:.:.i:.::.::.::.ii:.i:.:;:.:::.i:t!•::!•ii;•ii;.ii;•i:^:i:.i:.i....ii:•:<.: ..;.:::;.iiii::::i::<;•ii;•i;•i;.i;::;.:'i:.i:.i:.:..i..:.i:::iiiiii::.ii:.i:r•i•:i:.ii:.:.:.i:.i:.i:.i:.:.i:".i:.i:.i:.i:.i:.ii:•i::•:.i:•iirY.:.::.:.::.::i;•:;•;•:;.i:;•i:.i:.i:.i::.i:.i:.i:.i:.i":.:':i:..i:.:•:.:•ii::.:.i cers...:ar em o; ees::€::;;tc:;<:::atta :>::::::::. : .: >:::»<»:.. :. :. :: :. . ::: :::; o P .... ......................... ..... . ..........................................ck. .:::::se ::::;ai ..:;:.::.:u . ri:.:;: sr::::::::::annu : ::::>:::t P::::::: '::::::::::::::::::::::::.:::::.::::::::.....:.....R.......................................... ............................................................................ a roval of this A cement :>or:: the a prowl o� :an erm�t wanted approval ...........:...:..:....._..:::::.......:...X....p:::...:::.::..::..... ....::................. ursuant to this regiment<: the: C:xt sha:Z1>: :r..ov�ce wr3ten not: c to 7evelo er re ue .. n : evelo er t; :::;:3:ndgm* m ' ;:; °:c even and holt P. :. ........... .................. ........................P...........::....::::::::::................::.::.. 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":.;:,.i:.>:;. i:. ........ :.:'.;:....:....i:.:.i:.i:.i:.i:.:.:.i:.:'.:.:.;;. i:.i:.i:.i:.i:.ii:.;:.::.i:.:.;;:<;:.,;':;::..:::::::.:::..:::<::;,,...;,:.:::.:.;•::::.:.,:,..:::.:..::::::::::::::::::,::.:::::::.::.::.......... .::: :::::: development approvals previcus3:y issued k t� respect;:`..;;t the KKR41079 DRAFT 09-29-94 -3 2- :.+.fUhi.•..n<.L,v,{F.,+.::::...:\.}!{•..\a.}:,ra.h•.aq..:{{:{:F,v,..:,n.,..abhy..y.<.;:{a::::::rh{:::::.n:.:;::;:::::;.y::::v:::::.r::h..ay..a..a:::::vn.;.,.Y}.vy:::{::.:F::h..hv.n..:.?f•%•S:iF:i.:{.:{:i.:{{{ihtii{ni:ttN.•::1.}!\:tt•}}}:.}i:{.:Ly:{{t\iF:.!b!{tF?f{• 8.3 Indemnity. In addition to the provisions of Section 9.2 above, Developer shall indemnify and hold City, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of Developer, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury or death (Developer's employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of City. Developer shall defend, at its expense, including attorneys' fees, City, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. City may in its discretion participate in the defense of any such legal claim, action or proceeding. [Developer requests limiting indemnity to personal injury or property damage. ] 8.4 Environmental Contamination. Developer shall indemnify and hold City, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of Developer, its officers, agents, employees, KKR41079 DRAFT 09-29-94 -3 3- `fir► Iftle subcontractors, predecessors in interest, successors, assigns and independent contractors, excepting any acts or omissions of City as successor to any portions of the Property dedicated or transferred to City by Developer, for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and Developer shall defend, at its expense, including attorneys, fees, City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such claim, action or proceeding. [Developer requests deletion it no public improvement dedications. ] 8. 5 City to Approve Counsel. With respect to Sections 9.2 . , 9. 3 and 9. 4 herein, City reserves the right to either (1) approve the attorneys) which Developer selects, hires or otherwise engages to defend City hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense; provided, however, that Developer shall reimburse City forthwith for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor. 8.6 Accept Reasonable Good Faith Settlement. With respect to Section 9.2, 9. 3 and 9.4, City shall not reject any reasonable good faith settlement. If City does reject a reasonable, good faith settlement that is acceptable to Developer, Developer may enter KKR41079 DRAFT 09-29-94 -3 4- into a settlement of the action, as it relates to Developer, and City shall thereafter defend such action (including appeals) at its own cost and be solely responsible for any judgments rendered in connection with such action. This Section 9. 6 applies exclusively to settlements pertaining to monetary damages or damages which are remedial by the payment of monetary compensation. Developer and City expressly agree that this Section 9.6 does not apply to any settlement which requires an exercise of the City's police powers, limits the City's exercise of its police powers, or affects the conduct of the City's municipal operations. 8.7 Survival. The provisions of Sections 9. 1 through 9.6 inclusive, shall survive the termination fr` rac of this as to ters rme rr; xonAgreement an 9. Mortgagee Protection; Certain Rights of Cure. Nothing contained herein .no3udn , bud not:lmectoectiori:<: 2: shall limit fih�..creatirn cfortgac or interfere with the lien of r ' ed 'e the holder of any Mortgage (a "holder of any ............................................................ Mortgage" includes the holder of any beneficial interest under a Mortgage, or the purchaser at a judicial or nonjudicial foreclosure sale pursuant to the remedies provided in the Mortgage,or any person or entity which acquires title to the Property or any part thereof pursuant to a deed in lieu of foreclosure) , and no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage. KKR41079 DRAFT 09-29-94 -35- *001 9. 1 Holder of any Mortgage Not Obligated. No holder of any Mortgage shall have an obligation or duty under this Agreement to perform Developer's obligations or duties hereunder or to guarantee the Developer's performance thereof. 9.2 Notice of Default; Right to Cure. If a holder of any Mortgage files with the City Clerk a written notice requesting a copy of any notice of default given Developer hereunder and specifying the address for delivery thereof, then City shall deliver to such holder of any Mortgage, concurrently with delivery thereof to Developer, any notice given to Developer with respect to any claim of City that Developer has not complied with the terms hereof or is otherwise in default hereunder. Each such holder of any Mortgage shall have the right (but not the obligation) for a period of one hundred twenty (120) days after receipt of such notice from City to cure or remedy, or to commence to cure or remedy, the claim of default or noncompliance set forth in the City's notice. If any such default or noncompliance cannot, with diligence, be remedied or cured within such one hundred twenty (120) day period, then such holder of any Mortgage shall have such additional time as may be reasonably necessary to remedy or cure such default or noncompliance if such holder of any Mortgage commences to remedy or cure within such one hundred twenty (120) day period, and thereafter diligently pursues and completes such remedy or cure. Notwithstanding the foregoing, if the default or noncompliance is of a nature which can only be cured by such holder of any Mortgage by or upon obtaining possession, such holder of any Mortgage shall be deemed to have remedied or cured such default or KKR41079 DRAFT 09-29-94 -36- noncompliance if such holder of any Mortgage shall, within such one hundred twenty (120) day period, commence efforts to obtain possession and carry the same forward with diligence and continuity through implementation of foreclosure, appointment of a receiver or otherwise, and shall thereafter remedy or cure or commence to remedy or cure the default or noncompliance within one hundred twenty (120) days after obtaining possession. 9.3 Bankruptcy. Notwithstanding the provisions of Section 10.2 above, if any holder of any Mortgage is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof to obtain possession of the Property by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Developer, the holder of any Mortgage shall for the purposes hereof be deemed to be proceeding with diligence and continuity to obtain possession of the Property during the period of such prohibition if the holder of any Mortgage is proceeding diligently to terminate such prohibition. 9. 4 Estoppel Certificates. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the requesting party is not in default in the performance of its KKR41079 DRAFT 09-29-94 -37- obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. City acknowledges that a certificate hereunder may be relied upon by transferees, assignees and lessees of the Developer and the holders of any Mortgage. 10. Transfers and Assignments; Effect of Agreement on Title. 10.1 Rights and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. 11.2 Prohibition Against Transfer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights under this Agreement with respect to the Property or ` assume, or be deemed to have assumed, any obligations or duties hereunder with respect to the development of the Property except as expressly set forth herein. 7eveic� er has the right tQ><s12 ;'asign .:arid transfer anx anti all of its ri hta>.and interests her..e and t ass < a + ...............................::::......:...:.:.::..::.:::: . ......:..::.:.::.......:.......:::.::.::.:::. ::::.._ ..:......::.....:.::.... rans a an and::>"a .l of>.. ts::>:dut es :;and a rfi> .,•::.::;t. 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racI. e� %ved t%he written consent o the + tyt whWc cQnsent< may 3e given ar withheld by the pity in the exercise o its reassrabl 3iscretion ro�r .ded:.x::: holeveri that such consent shall::::>;:not;;; :fie ...::..........p:................:::::::..................... ............... ........................................................................................:::..:::..:..:::..:..::.,.;; .:.: re u r t .. n......the.....$vent of.: .-.: dale at �sr� :car ass .. ment to a ......g......:................................:.:.................::............:.:.:......................:.. ....................................:..:...................................................... .: ::..:.:4;...: .::".::::.::.:iiiiiiii:. .: ::.,.i:i.'. :.:..,...:. .i?:?ii...........n.is.i:.::.i::...:..........:.i:.:i......::.:L.i:....:....... ....::::: Aif l; a e; .. :::::An:»<>;'A :bate she 3 :: mean:::::;:::a<::;<: artnershi or::::: :w rit :::::::::::::::::::.:: :.:::::.::.:::.:::..::::::::::::::::::::::::::::::::::.::::..::::::..:. .:::::::::::::::.:..:::.:...::::�..:::.:.::..:::::. ..:.:::.:_::::: -:-: venture In which o the €ac i sQn tea . . :` artrt it h i .`;<»` 3 ti:.t c .......................... ...:.:.......:::::...... .::::.. ......:.:.............:..:.::.........:::..::....:.:::..:... ....:.:.::: .::::::.:...:::::...::............:....... ..:R._::::..:...................... .................. .........:�':::....::::::::::::::::::::::::::..................:::::::.::::::::::::::;::: .:::::::::::::::::::::::::::::::::::::::: .:::::::::.:::::::::::::.:::::::,: artnersh "Madisonp;:: ",>".; 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�e eiva the :.. . .Y ::. . . . ;::. :.:::::::::::::::::.:.:':.:::.:::; . rights and interests cf beveIopar but such transferee or::°assxgneei sha13> be bound box beveloper t s +0. l::at...ons., ollawing anx suclx sa3s, transfer casgnruent df `a� r off` the rights and intX.Xerests of beveioper under:: h s:<. agreement. the .......:.....: :....:'::........:........:::.::::. exereisaF: use::and en a :.merit th$rer :s'all �ign roue:t e sub act try :::; 7::: . ,.:. ::::.:: ;.;;.::::.I%- .::,: the terms cf thzs Agreement to the same _extent as if the purchaser: transferee car assignee were Developer hereunder 0ithout limiting KKR41079 DRAfT 09-29-94 -4 0' .. . :.:: ... a> <:>o "<> n�nert ><ti ... � ht ter interests .fly:> thev :Io .fir ::.....:................................::::::::::::::::. .:::::::::::::::::::::.::::::.:::::.::::::::::.:.:.::::::::::.:.::::::::::.:::.:::::...:::.:::::....:::::.P:.:::::::::::::::::..::.......................... :...: ::::::::::: :;::::::......::::.::;::,,::,::.::.:,:,,,:,,,,:::..:.::.:.................::.:.::::::................::....,.:,:: :.:_:,.:,::, ......::,..::::.:.::::::,,,.:.:.:.:.:: � . .:aenent shall be 1�aads c ..................................ar.....:_w h::and sub a _:t ;; ei :::::.:.:.......::.....::...:...................... ...................... ..............:..::.......:........................:....................... .................:::::::::::::::::::: :::.:::.::::::.::::::::............................................................................................................................................ ............. . .: ::::. >::>::>::> :;::.: ...:.;;;:.. : . .. : ::.: . > s:::>::A cement::;>::.:and:<:::>: :;::;::aher: . h <i terests>::::> :.;fit �e.....pus.:::c► .:: ......... :::::::::::::::::::::::::::x.::::::::::::::::::::. ? 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Prior to the ear2e <ok. <><<< ................................................. ................................................. ................................................. ................................................. ................................................. ` s} > > "the itarmnation of ths :: creemant ter the expiration of its armi or KKR41079 DRAFT 09-29-94 -41- y:::{Y.++::':<:?:'{i.'•:.....ip;{{r{^;n...::^-::.x. x••rr•x{::tip•{{rn!...}••ix:t;;:ti;>y••.:YI,.:4!:x?;:{{•;{{•W:x+f.{xggvnv.{i.xx.:S!{•:t�ry m,,.%ti :.uY{{x?x{r{?ti. :: .i} ::�v:i: rr r ...r ....:.v..::....nn:.:.v.:i�.:titi2r.:ti{{xx???.;. 2.::}\{}.vat<irnv...t;i}<;}t(.:G...n:.KLtL4:}}•r?Mp:• •..... .:{:v...n•.v\trtLtt.:L:•%i.Y{{tt?ttt.%:•:F.n:.n:::vv,ii.:::'l..........:v:•v::::-:-•:v v.. .•• .�. .vv:.•••:.:••-m.v:•: •w•:..:w.•vnrwn+nw:.v.:wmy,vnv••vw:mx:•y:4:{xv.{. wm,:v.,,vxxm :i ..y'.....:. �. 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'':.: .!'':-ih: ... :::•:'::?:i:?L!i'.:'.n4;•-:•:•:.,;t;;}....:: .n•::{. ::...:ii:?.iY"::\j�:.vx.x..t:...{::.:.....!::. :!n!.:.i'ii:.::::::f....,,.:,.. < ::»:;ate � tf3{;::ai�:�;' ::�>::...9:»::':�. 5::<:.. : •»>:::;...;:: >:::: :Be31le. ....:«:: .�. n�+ ...q,:..:v:...::..nv...........::..:.;.:tLL222222L?Cttttt«2.:2[22222it«tt{22??:.i?«????22}}}::}t}}:::::::?..t:•.•:•:i?}}L2::2.:;.::.::.:tt;L{{22222:.it. 2222:.,:v...t•, .:::.,..YtfL.:ti2:::'L'{i..i:::::::v.:r:r..vL.{....vt.tr{tv..:..:w.:..:L:..LLtv.ftit:L::::..:{x::.....:v:-w:•v::::::x::-v:. The Developer shall not assign or attempt to assign this Agreement or any right herein with respect to the Property tlr1C' :.:::v:n.,::.:.::.i'::.::::.!:{::..;.:v^.:::::n:::...:vn:..:: !v....: .�!!':: .:.....^t!.: t......:!::.iii.........:..i;::..:.....:{\:' ': ::}:. .Y::..::. .. .:::r ....: .i:<ii.i:.:�!::i:{Li'•:;a:i':}',ii:.i:.!:.:!':: .L:.:t?..N<�.:..tLi?tN.,:.iL?:<2:.:n,::::::,,:..:L::tL:,:tt{?t:t.:.r:,v:n.>ni:.,�...wr<Ltnt„it:v....n:tt...:..............................:............................................:...,.:::........n.....:n..v..:................ r,.;�:<t.:?.>;,�...�{{{�.r.:}��,.�..." >:••� e�-�e-�e�a-tc __ t €ems-e�a-t� �e delegate-er-transfer any ebligatiens er duties--e€-the De =leper hereunder with te- the eenstruet-ien of Mininum appreval may be given mo withheld in-theGrtys sele and _bse d3sTetien Netwithst-anding—the--€erege g hewevr-the City' transfer te-any Develeperffil=ate of t-his-6eetlen i'r-s- the—ter-ra "Deve-leper Affiliate" shall ieean a-lther of t i. Any general partner e€-Devele�ger-er any shar..he der er sharehelders of any general partner whe ewn(s) and eentrel(s) , d-ire_t y er indireetly, 50% er mere the eemmen sleek of su general-partner (LBeeler r Partner". 2 . Any general er limited partnership in whieh Develeperer a Beveleper Partner, individually-e= el _eti —1„ I is are the ma general partner of s-,..t.. p_r ,,.,,rsti,;p KKR41079 DRAFT 09-29-94 -42- Provided that all conditions of this Section 11.2 have been satisfied, the City shall take all actions reasonably necessary to accomplish the sale, transfer, assignment, conveyance or delegation of such rights and interests and such duties and obligations as permitted pursuant to this Section 11.2, including, but not limited to, the execution by the City of such instruments or documents as the Developer may reasonably request to evidence the release of the Developer from any such duties or obligations; provided, however, that the City shall not be required to so act if it reasonably believes that to do so would materially impair its rights or obligations under this Agreement. lease,trans€ems--erass-ignme t by Developer of pertlens er alTe= he-Preperty—er its rigs er interests--under this-Agreement, bevelepees-shall--eeetinue-te-be respensible f-er the perfermanee of its eblrgatiens and-a-ff-:rmati v e-ee=.enaets under-ems Agreeme..'' partiallyunless released er released 1f s ebligatiens and affirmative eevenantsr 11.41 Termination of Agreement with Respect to Property. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any portion of the Property with respect to which a final subdivision map taconforming to the terms and provisions of this Agreement has been recorded, and thereupon, and without the execution or recordation of any further document or instrument, such portion of the Property shall be released from and shall no KKR41079 DRAFT 09-29-94 -43- longer be subject to or burdened by the provisions of this Agreement; provided, however, that (i) the foregoing shall not be construed to release Developer from any then unperformed obligations under this Agreement with respect to such portion of the Property, and (ii) the benefits of this Agreement shall continue to run as to such portion of the Property until such time as such portion of the Property is developed and the benefits of this Agreement with respect thereto are fully utilized by the construction of a building or buildings or other improvements thereon. Upon receipt of written request therefor and subject to $evlepe s a the eemplianee--w-it-h provisions of Section 11.2 snc ><> hereof, the City shall promptly provide to the Developer, or any transferee or assignee of an interest of the Developer in the Property, a written statement confirming the release of any portion of the Property from the burdens of this Agreement or the termination of this Agreement with respect to such portion of the Property, which statement shall be in form appropriate for recording in the official records of Riverside County and shall impart constructive record notice of such release or termination. Covenants Run with Land. Subject to the foregoing provisions of this Section it and Section 10: (i) All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, consolidation, or KKR41079 DRAFT 09-29-94 -44- otherwise) and assigns, devisees, lessees, and all other persons acquiring any rights or interests in the Property, or any portion thereof, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns; (ii) All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law; (iii) Each covenant to do or refrain from doing some act on the Property hereunder (A) is for the benefit of and is a burden upon every portion of the Property, (B) runs with such lands, and (C) is binding upon each party and each successive owner during its ownership of the Property or any portions thereof, and shall benefit each party and its lands hereunder, and each such other person or entity succeeding to an interest in such lands. Notwithstanding any of the foregoing or anything to the contrary contained in this Agreement, any transferee or assignee or holder of any Mortgage which acquires any right or interest in or with respect to the Property or any portion thereof shall take and hold such rights and interests subject to this Agreement and shall not have been deemed to have assumed any obligations or duties of the Developer hereunder except to the extent that any' such transferees or assignees or holder of any such Mortgage have expressly assumed in writing any of the duties or obligations of the Developer hereunder. KKR41079 DRAFT 09-29-94 -45- **Woo, 11. Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: If to City: City Clerk of the City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 If to Developer: The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. John P. Boorn with a copy to: The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. James S. Bennett with a copy to: Pircher, Nichols & Meeks 1999 Avenue of the Stars, Suite 2600 Los Angeles, California 90067-6077 Attention: PN&M Notices (SAH) Either party may change its mailing address at any time by giving written notice of such change to the other party in the manner provided herein. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 12 . Miscellaneous. KKR41079 DRAFT 09-29-94 -4 6- 12. 1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that none of the terms or provisions of this Agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 12.2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise specified in this Agreement or otherwise required by law for a specific time period, consent shall be deemed given within thirty (30) days after receipt of the written request for consent, and if a party shall neither approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this Agreement or otherwise required by law for consent, that party shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor shall be stated in reasonable detail in writing. This Section does not apply to development approvals by the City. 12.3 Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly KKR41079 DRAFT 09-29-94 -4 7_ limited to and for the purposes herein expressed for the development of the Project as private property. Except for any portion of the Property which has been conveyed to the City by Developer as provided in this Agreement or the DDIA, Developer shall have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas and buildings and improvements located thereon, by any person for any purpose inimical to the development or operation of the Project as contemplated by this Agreement. Any portion of the Property conveyed to the City by Developer as provided herein shall be held and used by the City only for the purposes contemplated herein or otherwise provided in such conveyance, and City shall not take or permit to be taken (if within the power or authority of the City) any action or activity with respect to such portion of the Property that would deprive the Developer of the material benefits of this Agreement or would materially and unreasonably interfere with the development of the Project as contemplated by this Agreement. 12.4 Severability. If any term, provision covenant or condition of this Agreement shall be determined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. KKR41079 DRAFT 09-29-94 -48- *..+, 12.5 Exhibits. The Exhibits listed in the Table of Contents, to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 12.6 Entire Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto. 12.7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 12.8 Signature Pages. For convenience, the signatures of the parties to this Agreement may be executed and acknowledged on KKR41079 DRAFT 09-29-94 -49- separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. 12.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 12.10 [Reserved] [Developer requests inclusion of attorneys fees provision. ] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above-written. DEVELOPER; THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership By: The Boorn Bennett Limited Partnership, an Ohio limited partnership, its general partner By: Boorn, Inc. , an Ohio corporation, its general partner By: John P. Boorn President CITY: THE CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California M M I C V By: Mayor Attest: City Clerk KKR41079 DRAFT 09-29-94 -50- STATE OF CALIFORNIA) ss. COUNTY OF ) On before me, the undersigned, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. KKR41079 DRAFT 09-29-94 -51- STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On before me, the undersigned, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. KKR41079 DRAFT 09-29-94 -52- 14000 EXHIBIT "A" PALM DESERT PROJECT DEVELOPMENT STANDARDS FOR THE PROJECT I. Purpose. of Development Standards II. Project Introduction A. Overview and Location B. Project Statistical Summary III. General Notes and Conditions IV. General Development of Project A. Proposed Uses B. Building Square Footage Limits and Maximum Heights C. Density and Intensity of Use D. Open Space V. Planning Guidelines A. Purpose B. Site Planning and Circulation C. Grading/Drainage/Street Standards D. Landscaping, Walls and Lighting E. Design Concept of Buildings/Parking/ Loading Area F. Utility Services and Structures G. Project and Business Identification VI. Plan Review Requirements A. Purpose B. Development/Precise Plan Review C. Development/Precise Plan Contents KKR41079 DRAFT 09-29-94 -1- I. Purpose of Development Standards The purpose of the development standards for the Project is to: 1. Provide the Developer with a planning and development process which will result in a Project that is consistent with the City's General Plan and in furtherance of the goals of the City as set forth in the Agreement. 2. Provide supplemental criteria for the use, design, density, circulation and development of the Project (as described in II.B hereof) that will result in an aesthetically pleasing, environmentally harmonious and commercially viable product that expands the goods and services presently available to the community. 3 . Ensure that development occurs in an orderly fashion through long-range planning. 4. Encourage development that is operationally functional to both the building operator and the consumer. 5. Provide for the development of the Project in a manner which is consistent with the terms and provisions of the Agreement and the Existing Land Use Ordinances. II. Project Introduction A. Overview The Project presents an opportunity to master plan one of the remaining large vacant properties within the area of the City subject to the City's Commercial Core Area Specific Plan. The development of the Project in accordance with the provisions of the Agreement and these development standards furthers the development objectives of the City in an orderly manner. The development of the Project in accordance with the provisions of the Agreement and the development standards provides a number of benefits: KKR41079 DRAFT 09-29-94 -2- 1. It maximizes the potential for high quality economic development of the Commercial Core Area. 2. It addresses specific policy recommendations of the Palm Desert Commercial Core Area Specific Plan. 3 . It provides for the completion of all necessary signalization and pedestrian amenities for E1 Paseo, Shadow Mountain Drive, Larkspur Lane and San Pablo Avenue in the vicinity of the Project, as provided for in Exhibit "D". B. Project Statistical Summary Common Name: Sun Lodge Colony Location: SWC El Paseo and Larkspur Lane Acreage: 10.3 acres Site Topography: generally flat with slight slope up to the south. III. General Notes A. Purpose This section III is included to: (i) provide certain definitions for use with respect to this Exhibit "A"; (ii) to describe the relationship of this Exhibit "A" to the Existing Land Use Ordinances and the Building Ordinances; and (iii) provide other miscellaneous provisions necessary to effectuate the purposes and intent of the Agreement. B. General Notes 1. Terms contained in this Exhibit "A" shall have the same meaning as defined in the Agreement unless otherwise defined herein. 2. Except as otherwise provided in this Exhibit "A" and in the Agreement, the development of the Project shall be in accordance with, and the development of the Project during the Term shall be KKR41079 DRAFT 09-29-94 -3- governed by, the Existing Land Use Ordinances. 3. Except as otherwise provided in this Exhibit "A" and in the Agreement, all construction of improvements upon the Property shall conform to the building and construction standards established by the Building Ordinances. 4. Whenever the provisions of this Exhibit "A" conflict with the provisions of the Existing Land use Ordinances or the Building Ordinances the provisions of this Exhibit "A" shall be deemed to control to the extent necessary to effectuate the purposes and intent of the Agreement. 5. The maximum aggregate allowable building square footage for the Project shall be 167,000 s.f. of gross leasable area; provided, however, that the Project may include up to an additional 30, 000 square feet of gross leasable area if a lease or other occupancy agreement is entered into with any of the following for the construction of a retail store in the Project: (a) Saks Fifth Avenue, (b) one (1) or more retailers which are similar to Saks Fifth Avenue (in which event City shall have the right to decide, in its reasonable discretion, whether or not each such retailer proposed by Developer is similar to Saks Fifth Avenue) , or (c) one (1) or more retailers which are not similar to Saks Fifth Avenue (in which event City shall have the right to approve each such retailer in its sole discretion) . The failure of City to respond to a request for approval of a retailer pursuant to clause (b) or (c) of the immediately preceding sentence within twenty (20) days after Developer's request shall be deemed approval of such retailer. The City covenants and agrees that the amendments to the Development Agreement set forth in this paragraph 5 relating to the permitted size of the Project shall not result in a reduction of the maximum aggregate allowable building square footage provided in the Development KKR41079 DRAFT 09-29-94 -4- v w+ Agreement for the properties affected thereby (or otherwise obtained from the City by the developers of such properties in the course of their development) . 6. Development of the Property may accommodate all uses permitted in the C-1 zone as identified in the Existing Land Use Ordinances. 7. Parking requirements for layouts and sites for the Project shall be based upon the requirements for general retail and office use as described in the Existing Land Use Ordinances. Parking requirements for ratios shall be based upon the less stringent of the following: (a) the requirements for general retail and office use as described in the Existing Land Use Ordinances, or (b) four spaces per 1, 000 square feet of gross leasable area. Notwithstanding anything to the contrary set forth in paragraph IIIB6 or this paragraph IIIB7 or in the Existing Land Use Ordinances, up to 25% of the total gross leasable area may be developed as restaurant space with no additional parking requirements. 8. Changes in the location or configuration of the Buildable Zones within the Project, as designated on the Land Use Development Plan as attached hereto may occur as specific site plans are developed. Any such changes will be subject to the prior approval of the Community Development Director of the City. [Note: A revised Land Use Development Plan will be proposed for attachment to this Amendment. ] 9. Tentative Tract Map may be filed and approved subject to consistency with the Land Use Development Plan., 10. Except as otherwise provided herein, all approvals of the City, the Community Development Director, or the Planning Commission of the City required as provided herein shall be based upon the criteria and standards for such approval KKR41079 DRAFT 09-29-94 -5- set forth in the Existing Land Use Ordinances and the Building Ordinances. 11. Prior to the issuance of any building permit with respect to the Project, a precise development plan for the development of the Project shall be submitted to the Planning Commission and shall be approved by the Planning Commission if such precise development plan is consistent with the Land Use Development Plan and complies with the provisions of the Agreement. 12. The Developer shall be permitted to establish a Project office on the Property upon execution of the Agreement by the City. 13 . Sizing of all backbone utility facilities shall be predicated on the maximum density proposed for the Project and shall not be required to be oversized to accommodate uses other than with respect to the Project. 14. All improvements required as Exactions pursuant to the attached Exhibit "D" shall be constructed by Developer as and when such improvements are necessary with respect to Project development. 15. The terms indicated on the Land Use Development Plan shall have the following meanings: A. Building Zone: The approximate area in which the buildings within the Project will be located. B. Parking/Landscape Zone: The approximate area in which the majority of parking stalls within the Project will be located. IV. General Development of the Project A. Proposed Uses Any or all uses permitted in the C-1 zone of the Existing Land Use Ordinances. KKR41079 DRAFT 09-29-94 -6_ *rr `41"'3 B. Maximum Building Square Footage Limits and Maximum Heights Maximum S.F. 167,500 (subject to increase as set forth in paragraph IIIBS) . Height Limit Per applicable Existing Land Use Ordinances C. Density and Intensity of Use The Developer shall be entitled to develop the Property to the maximum building site coverage percentage provided in the applicable Existing Land Use Ordinance as it pertains to the Property. The Land use Development Plan depicts the eligible building areas within the Property. Buildings shall be reasonably distributed within the Property to permit ease of vehicular and pedestrian access, circulation and egress and for proper operational building service requirements. V. Planning Guidelines A. Purpose Except as otherwise provided in the Agreement or this Exhibit "A", the development of the Property shall be subject to and controlled by the design and development guidelines established by the Existing Land Use Ordinances and the Building Ordinances. The following guidelines are intended to be supplemental to those established by the Existing Land Use Ordinances and the Building Ordinances and to the extent they are inconsistent or in conflict with the guidelines established by the Existing Land Use Ordinances and the Building Ordinances, these guidelines shall be deemed controlling. Subject to the foregoing, all development plans for the Property shall comply with the following guidelines. B. Site Planning and Circulation Access to the Property is to be provided from the adjacent streets as depicted on the Land Use Development Plan. Interior vehicular circulation shall be patterned to permit ease KKR41079 DRAFT 09-29-94 -7- of ingress and egress as well as the distribution of buildings in relation to parking areas to allow for the dispersion of vehicles and pedestrians throughout the Property. The Project shall. have clearly defined pedestrian routes into and throughout the Property in order to minimize potential points of conflict between pedestrians and vehicles. Individual entries shall occur at the designated locations on the Land Use Development Plan. Building setbacks shall be as depicted on the Land Use Development Plan. C. Grading/Drainage Grading design shall reinforce the architectural and landscape designs in the following ways: A. Assist in screening parking, loading and service areas. B. Reduce the perception of height and mass of large buildings. C. Provide a reasonable transition from the street to the Property. The applicant may obtain permits for rough grading after approval of conceptual grading plans by the Director of Public Works and the Director of Community Development. Grading shall be permitted outside of an area of immediate development if consistent with the conceptual grading plan. Drainage of surface parking areas and roof areas shall terminate at an underground storm drain system in the public streets. Points of connection will be provided for the Property. D. Landscaping Landscape materials shall enhance the major architectural design elements through the coordinated use of indigenous and introduced plant species, lighting, massing, etc. Landscaping shall be in accordance with a Landscape Concept Plan as provided in the Existing Land Use Ordinances. The Landscape KKR41079 DRAFT 09-29-94 -8- concept Plan will be submitted as part of the precise plan at the time development of the Property is proposed. The landscape framework will be compatible with the desert environment. E. Design Concept of Buildings/ParkinalLoading Areas The architecture of the Project shall possess an underlying compatibility among the various buildings through the use of similar materials, finishes, colors and amenities while allowing a degree of flexibility for expression and identity. All building designs shall be aesthetically agreeable with the desert environment. The Property shall provide 200 public parking spaces in addition to the number of spaces required by paragraph IIIB7. Loading docks, service delivery areas, where provided, are required to be screened, recessed, and/or enclosed so as not to be visible from adjacent streets and properties. Loading, service and delivery areas shall not encroach into any setback areas. F. Utilities and Utility Structures Public services and utilities will be provided by the following public/private agencies unless otherwise approved by the Director of Community Development: a. Water - Coachella Valley Water District b. Sewer - Coachella Valley Water District C. Flood Control - Coachella Valley Water District d. Electricity - Southern California Edison Company e. Natural Gas - Southern California Gas Company f. Telephone - General Telephone Company g. Schools - Palm Springs and Desert Sands Unified School District h. Public Parks - Coachella Recreation and Parks District KKR41079 DRAFT 09-29-94 -9- i. Fire Protection - Riverside County Sheriff Department j . Police Protection - Riverside County Sheriff Department k. Solid Waste Disposal - Riverside County Road Department and Palm Desert Disposal Services 1. Television - Coachella Valley Television All utilities shall be installed and maintained underground. Utility design shall not place excessive burdens upon offsite systems. Temporary overhead power and telephone facilities are permitted during construction only. Any device for transmission or reception of communication signals shall be screened. Rooftop devices shall not extend above the building's highest architectural element or be visible within a horizontal line of sight. Ground-mounted devices shall be screened from view from adjacent streets and property. Outdoor trash areas shall be visually screened by a 6-ft.-high (minimum) , non combustible enclosure constructed of the same materials and finishes as the adjacent building. Enclosures shall be designed and located so as not to be highly visible from adjacent streets and property. G. Proiect and Business Identification Project entry statements composed of signage, landscaping, architectural features, or a combination of same, will be depicted on the landscape concept plan. VI. Plan Review Requirements A. Purpose This section is established to ensure that the overall purpose and intent of the Project is satisfied and implemented in an orderly manner. B. Development/Precise Plan Review KKR41079 DRAFT 09-29-94 -10- When the actual development of the Property is proposed, an application for approval of a precise plan shall be filed with and such precise plan shall be approved by the Planning Commission if it is consistent with the Land Use Development Plan and complies with the provisions of the Agreement and this Exhibit C. Precise Plan Contents Subject to the provisions of the Agreement and this Exhibit A the precise plan shall include the requirements of Section 25.73 .011 of the Existing Land Use Ordinances. KKR41079 DRAFT 09-29-94 -11- 'err` EXHIBIT "B" THE PROPERTY THE FOLLOWING REAL PROPERTY IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: The following legal description encompasses the entirety of the Property on the Land Use Development Plan. Parcels 1 and 2 of Parcel Map 4655, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 7, Page 42 of Parcel Maps, in the Office of the County Recorder of said County. KKR41079 DRAFT 09-29-94 -1- EXHIBIT "C" PHASING SCHEDULE Phase Entitlement/Maximum Rate Development Activity I. Execution of Agreement Developer may obtain all Agreement authorized, necessary approvals , executed and delivered consents, permits, or other to Developer by City of entitlement for the Palm Desert construction and occupancy of not less than 100,000 square feet of gross floor area within the Property and not more than that permitted by paragraph IIIB5 of Exhibit A. KKR41079 DRAFT 09-29-94 -1- EXHIBIT "D" EXACTIONS As provided in the Agreement, the following constitutes those Exactions which may be imposed by the City with respect to the development of the Project. The following Exactions include all of the mitigation measures with respect to the Project for which the Developer will be responsible for satisfying and which were identified in the Environmental Impact Report (the "EIR") pertaining to the Project .and certified as complete by the City on November 16, 1989. Unless otherwise provided for in this Exhibit "D", all Exactions shall be constructed or provided by the Developer in conformance with the requirements of the Existing Land Use Ordinances. Those Exactions identified herein, while intended to be specific in nature, will remain subject to specific Project review as provided in Exhibit "A". The City and the Developer will in good faith attempt to agree as to any modifications of the following Exactions which are requested by the City as a result of such specific Project review. 1. Street Improvements All street improvements are subject to the review and approval of construction documents pertaining thereto by the City of Palm Desert Department of Public Works. All of the following street improvements are to be located adjacent to the Project. A. South side of E1 Paseo between San Pablo Avenue and Larkspur Lane -- completion of all pedestrian amenities including street lighting, landscaping, bus stations, sidewalks, benches, and decorations. B. West side of Larkspur Lane between E1 Paseo and Shadow Mountain Drive -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks. C. East side of San Pablo Avenue between E1 Paseo and Shadow Mountain Drive -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks. KKR41079 DRAFT 09-29-94 -1- D. North side of Shadow Mountain Drive between Larkspur Lane and San Pablo Avenue -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks. 2. Traffic Signals All of the following traffic signal improvements and signal modifications are to be located adjacent to the Project. As used in this Paragraph 2, the "related improvements" shall mean those improvements identified by the City of Palm Desert Department of Public Works as necessary to implement the traffic signal modifications to which they relate. A. New traffic signal and related improvements at the intersection of E1 Paseo and Larkspur Lane, all as required by the EIR. B. Traffic signal modifications and related improvements at El Paseo and San Pablo Avenue, all as required by the EIR. 3 . Storm Drains A. Construction of all necessary drainage systems with respect to the Project and the facilities necessary to connect such systems to the existing underground storm drain systems in the public streets, all as required by the EIR. 4. Transit A. Construction of bus turnouts and shelters for the Project, all as required by the EIR. B. Provide a Transportation Demand Management Study as required by the EIR. 5. Public Parking In conjunction with the construction of the private commercial/retail facilities to be located on the Property (if constructed) , the Developer shall provide 200 additional parking KKR41079 DRAFT 09-29-94 -2- spaces above project parking requirements for the Property as required by paragraph IIIB7 of Exhibit A for use as public parking spaces (as such term is defined in Exhibit "E") . Prior to the commencement of construction of the commercial/retail facilities to be located on the Property, the Developer and the Agency shall have in good faith negotiated and entered into the Parking Management Agreement described in Section of the Disposition And Development Agreement. It is the intent of the Developer and the City that, subject to the provisions of the Disposition and Development Agreement pertaining to the payment by the Agency to the Developer of the Purchase Price for the Parking Rights, the Developer will pay all costs of constructing such public parking spaces. 6. Housing The Developer will pay a housing mitigation fee for the Project at the time of building permit issuance with respect thereto. The proceeds of such fees shall be used by the City, along with other revenues of the City, to address the very low, low and moderate income housing needs generated by the development of the Project consistent with the housing programs identified or to be identified in the housing element of the City's General Plan. Such fee shall be in the amount of $1.00 per square foot of building floor space for mixed commercial/retail development and $.50 per square foot of building floor space for professional office . development. This fee shall be payable by the Developer only if a similar fee equal to or greater than this fee will be required by the City with respect to all other commercial development within the City. In no event and under no circumstances will such fee exceed $197,500. 7. Fees A. T.U.M.F. Fees B. Signalization Fee C. Drainage Fees D. Art in Public Places Fees, which fees shall be one half of one percent ( .5%) of KKR41079 DRAFT 09-29-94 -3- vow the total building valuation (valuation for building permit purposes) , with no maximum limit. E. The usual and customary fees of general application charged for processing of applications for permits and approvals pertaining to the development of the Project. KKR41079 DRAFT 09-29-94 -4- EXHIBIT "E" THE PUBLIC FACILITIES The City and the Agency desire to provide or to cause to be provided the following public improvements to service property within and outside of the Project. In conjunction with the construction of the private commercial/retail facilities to be located on the Property (if constructed) , the Developer shall provide a minimum of 200 public parking spaces on the Property. For the purposes of this Exhibit "E", the term "public parking spaces" shall mean those parking spaces which: (i) are designated by the Developer as available for parking by the general public; (ii) are not designated by the Developer for preferential or exclusive use by patrons or employees of the private commercial/retail facilities to be constructed on the Property; and (iii) may be used by the general public for parking during normal business hours without the payment of fees or charges for such parking imposed by the Developer (unless there are charges for parking in parking areas owned, operated or regulated by the City, in which event Developer may charge for parking amounts not in excess of the charges imposed in such parking areas) . Prior to the commencement of construction of the commercial/retail facilities to be located on the Property, the Developer and the Agency shall have in good faith negotiated and entered into the Parking Management Agreement described in Section of the Disposition And Development Agreement. Nothing set forth in this Agreement or this Exhibit "E" shall be construed to prevent the Parking Management Plan from imposing reasonable parking regulations and restrictions upon the public parking spaces, including but not limited to regulations and restrictions related to valet parking, parking validations and employee parking and restrictions or prohibitions upon the use of the public parking spaces by office parkers. KKR41079 DRAFT 09-29-94 -1- EXHIBIT a F�� ZMPLEMEXTATZON DISPOSITION, DEVEAGR EENMENTND (to be inserted) -I- KKROM DRAFT 09-29-94 Fdm DDT " 73-510 FRED WARING DRIVE,PALM DESERT,CALIFORNIA 92260 TELEPHONE(619)346.0611 CITY OF PALM DESERT LEGAL NOTICE PROJECT NAME: AHMANSON COMMERCIAL DEVELOPMENT AGREEMENT NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider a request by MADISON REALTY PARTNERSHIP/SUNRISE COMPANY for approval of a Negative Declaration of Environmental Impact and an amendment to an approved Development Agreement Ordinance No. 590 increasing the maximum floor area of a proposed retail commercial center from 167,000 square feet to 200,000 square feet on Site Area No. 5, a 10.3 acre parcel on the south side of E1 Paseo between San Pablo Avenue and Larkspur Lane. APN 627-261-002 �1 T t z a n R-3 ALC SANDRO N�DRIVEJ s V DRIVE NORTH J PALM T DRIY[ NO -- STATE HIGHWAY 111 C .P. P `[ —FL PA S E 0 _ C-1 S.P. C 1 o ;�+ ti ` — ' AP p. .r q o 2% 0 3) 3 R-3(4) x a; P' P.R. : ( ) \ , :; SHADOW MOUNTAIN N DRIVE SHADOW MOUNTAIN DRIYE R 3 13, 0 (3 9 _1 1 0 - 12. 0 STRCCT SHADOW AAE 1✓ JOSHUA TREE CH i N T ` \ JUNIPER STREET ' o JUNIPER STREET SHADOW CM W N T T T = SAID public hearing will be held on Tuesday, September 6, 1994, at 7:00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/ planning at the above address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Sun RAMON A. DIAZ, Secretary August 15, 1994 Palm Desert Planning Commission MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 12, 1989 s a • . . . . . • . . . . s . . s s s � s • . s a park plus the 30 acres . Plan should not preclude us from acquiring other park land as it is needed. Felt that if it was the Council ' s desire to have flyways , it should be so stated at this time in the plan . He cautioned , however , that it may be difficult to require land dedication for these . Said Master Plan of Landscaping can be developed ; staff was attempting to accomplish it throughout the City and not just in the north sphere . Noted that sufficient right-of-way was available to make Cook Street six lanes but that Portola was predesignated at four lanes . Dinah Shore between Monterey and Portola is designated as four lanes as well . Crites : For the record, said it should be noted that Council was talking about a 25-acre park in the North Sphere in addition to the 30 acres which totals 55 acres . Kelly: Proposed setting aside six locations for potential fly overs ; said it would never be done if it were not included in this plan . Locations suggested were : Monterey Avenue and Gerald Ford Drive , Monterey Avenue and Frank Sinatra Drive, Monterey Avenue and Cook Street , Cook Street and Frank Sinatra Drive, Cook Street and Country Club Drive, and Cook Street and Hovley Lane . Councilman Crites moved to waive further reading and adopt Resolution No . 89- 122 amended to include : That the area directly to the north of the Palm Desert Resort Country Club be dual designated R- 1 /O . P . /S . I . , that the six locations of Monterey Avenue and Gerald Ford Drive, Monterey Avenue and Frank Sinatra Drive, Monterey Avenue and Cook Street , Cook Street and Frank Sinatra Drive, Cook Street and Country Club Drive, and Cook Street and Hovley Lane be set aside for possible use for fly-over type intersections , and that the Planned Community Development be reduced from 100 acres to 50 while maintaining the same standards of the zoning . Councilman Kelly seconded the motion, and it carried by unanimous vote . Mayor Wilson declared a five-minute recess. B . CONSIDERATION OF REQUEST FOR CERTIFICATION OF ENVIRONMENTAL IMPACT REPORT , APPROVAL OF GENERAL PLAN AMENDMENT , CHANGE OF ZONE , AMENDMENT NO . 5 TO THE REDEVELOPMENT PLAN FOR PROJECT AREA NO. 1 , AND DEVELOPMENT AGREEMENT BETWEEN THE CITY AND AHMANSON COMMERCIAL DEVELOPMENT COMPANY (CASE NOS. GPA89- 1 , C/Z89- 1 , ZOA89=_I)_. (Continued from the meeting of September 28 , 1989. ) Wilson : The next public hearing is consideration of a request for certification of Environmental Impact Report , Approval of General Plan Amendment , Change of Zone , 15 91 sly4 o4 spaebaa y4IMM * away pasodoad st 4egmAt4oexa Mount _43e4s 4a l ao sn peal p t noys Aepo4 suo t ssno s l p anon( pue s4oafoad oM4 asay4 uaaM4aq a6plaq 4oauuo3aa4ul 30 putt awos • 4uawdotanap 40 awl -4 ay4- 4e 130 A41 t lglssod ay4 30 uotssnoslp awos seM aaa41 * 4aaa4s y6noay4 a y4ed saa4uted 6ulney o-4 pasoddo se sanl4euaa4te a44 30 atgeaa3aad ay4 aq pinoM y4ed saa4uted y4lM tauueyo ay4 ssoaoe uot4oauuoo e aney 4ou saop -4ey4 an l4euaa-4 t e s l y4 ao 9 ant }euaa-4 l e 4ey4 ttounoo ay4 30 saagwaw aye. 6uowe snsuasuoo aq 04 pawaas aaayl • g4ed saa4uled 40 aan4n3 ay4 o4 spaebaa y4tM ant4euaa4le yotyM seM auo - asanoo 30 pue • 6utaeay 4sel ay4 4e do 4y6noaq aaam 4ey4 sansst Aa�t ay4 30 awoS ' lit AeMy6IH 6uote Alaetnot4aed , uol4eaaplsuo3 aapun slaoaed aelnot4aed ay4 30 stsAleueaa pue 6ut �tuly4aa ao4 patleo `A41 :) aye. Aq pa4dope seM yolyM 1a03 patleo uetd teloaawwoO aao3 anoA Alteul3 puV • uot4etoossV , s4uegoaaw 0ased 13 ay4 pue aoaawwoD jo aagweyo ay4 o4 @pew uaaq aney suol '4e4uasaad luol4lppe ul •pauaaou0o st uol4eInoato ay4 se ae4 se off. 4@6 tIIM I se aauuew awes ay} uI Atlaessaoau 4ou • Ienoadde papuawwooaa Aat44 aaayM Issaooad 6ulaeay otIgnd s ,u0IsslwwoD 6utuueId ayl • Ienoadde papuawwooaa aney Aay4 pue • Iesodoad a44 6uIMaInaa ut 4ueot1dde pue aadolanap ay4 y41M paMJOA sey aa441wwoo AaostnpV 4uawdotanaa 3lwouo33 ay4 ' ostV • eaae u014eut4sap teloaawwoo 4aosaa a se ttaM se eaae letoaawwoo tle4aa ay4 ut aouautwaaad sot ute4aa o-4 4aasaa w I ed 40 A4 I 0 aye, J04 6u ► l I eo ue t d OOOZ aea,k 4ey4 pue eaae tetoaawwoo ay4 ut MaoM s ,a9441wwoo OOOZ aeaA ay4 aaaM yoIyM 40 s6uIuuI6aq ay4 14ao43a pue MaoM 3o saeaA 4o 4ol e ices ueo am 'Atlen4oV • 4a033a pue MJOm 30 s44uow 40 401 e 4o uol4eutwlno a st noA aao3aq aney noA 4ey4 lesodoad ayl ' ltouno� aye 3o saagwaw pue aoAeW • aW IsaA : zeIa • 6ut4aaw 4sel ay4 4e pastea sansst o4 asuodsaa a pue 4aodaa e a04 33e4s ay4 Ise 4sat4 tt ►M 14nq uado tll4s st 6utaeay allgnd agl • 6ut4aaw 4sel ay4 4e passnoslp aaaM 4ey4 sansst ay4 40 pastadde we 14ey4 taa4 pue 6ulaeay 4ey4 40 4dlaosuea4 wt4egaan 14dtaosuea4 ay4 peaa oste I pue 6ulaeay 4eg4 4o papaooaa seM 4ey4 ade4 ay4 o4 paua4stl aney I awt4 4ey4 aoulS '696I 19Z aagwa4daS 30 6ul4aaw ay4 4e aouepua44e uI 4ou seM 14ey4 94e4s o4 a>ttt ptnoM I •paooaa ay4 aoj '696I 19Z aagwagdaS 30 6u14aaw ano woa4 panut4uoo uaaq sey 4ey4 6ut :aeay a 'Auedwo3 4uawdolanaa letoaawwo3 uosuewyV pue A4t0 ay4 uaaM4aq 4uawaaa6V 4uawdolanao pue • I ' ON eaaV 40aCoad a04 ueld 4uawdolanapa8 ay4 04 S *ON 4uawpuawV • f f • f f f f f • • • f f f f i i • f • f f f f 696I `ZI a390130 9NI133W II3Nnoo AIIJ 183S3a WIVd avin3d S31nN I W �rrr MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 12, 1989 interconnect , you have a letter from legal counsel for Mr . George Fox that was submitted today indicating that if the Alternative B is adopted , there could be possible litigation as a result of that because he needs that for access . I might indicate to the Council that at the time we were reviewing that particular plan , that access was not shown as necessary for that development . If it had been , we might have looked differently at that particular development . However , as far as the access to that particular property is concerned and those easements , it is staff ' s feeling that is a private matter between the property owner and that we should make the decision that , I 'm sure that we will make the decision that we feel is in the best interests of the City of Palm Desert with or without the threat of litigation . The other issues that arose was with regards to the parcel at Town Center Way and Fred Waring Drive and the uses that would be proposed along Fred Waring. At this particular point in time , we do not have specific developments or development plans before us . Those , again , would be subject to further public hearing and additional hearings . It would be staff' s recommendation that we indicate that in terms of this particular parcel that along Fred Waring Drive that at the time of application , that the applicant develop this in a manner that will not duly impact Fred Waring in terms of aesthetic concerns as well as impact it in terms of intensity of development . One of the key items within this plan and proposal , of course , is the item of the people mover , which is currently under study by a firm , and you - received a first check for $ 1 0 , 000 today from the Town Center . The applicant has also agreed to pay for $ 1 0 , 000 of that study, and of course the City is paying for the other third. And that particular study will result in terms of the overall plan of a people mover to connect the entire commercial area, which would have a s i gn i f i cant effect in terms of traffic flow and interchange of people moving from one area and one center to the other . The applicant will be conditioned to pay his fair share of the cost of implementing that . He does not object to that and that will be in the final development agreement that you will have before you . In terms of El Paseo , an issue that arose at the last meeting was how that Sun Lodge Colony was going to be developed . Again , that would be subject to the precise plan of design for that particular site and it will be developed in a manner that is obviously compatible with our overall long-range goals and objectives and compatible 17 ay4 UO Uay4 Auowi4sa 4a�le4 o4 anut4uoo pue 4Uo�� 4oedwi l e4UaWUOJ I nua ay4 uo 6u t aeay O t I qnd 4ey4 aso t o 04 a,>I l I �- pinoM I pue l4ey4 ssnosip o4 aoueyo jag4oue ttouno3 ay4 ant 6 • O t I qnd ay4 wo.13 4.ioda.1 4oedw t l e-4uawuo.a t nua ay4 uO Auowl4sa4 ay4 3o IIe ua44o6 aney am aa-43y • 4aodaa 4oedwl I e4Uawuoa l nua aye. ssaappe 4uawwoo o i l qnd I l e aney 04 a)i l l 4s1i _4 ptnoM am 4ey4 aealo 41 a>lew , ute6e lo4 all I pinoM I uado st 6utaeay otlgnd ayl • noA Nuey4 AeMo : uosItM • noA )luey4 •Ae� o : sa4l jo • os op ueo 41 'potaad 4uawwoo ay4 uadoao o4 says ► M awt4 ul 4ulod Uetnot4Ued 4ey4 4e • saystM os tlouno3 ay4 41 • 64uawwoo asoy.} o4 asuodsaa pue asuodsao ay4 04 s4uawwO3 30 UaLI4 sa t aas ssa l pua ue aney 4ou Op aM • s4uawwoD 04 asuodsaa ay4 pue • s4iodaa asoy4 O-4 s4uawwoO ay4 a4.rodal 4oedwl le4uawuoitnua 44eUp ay4 aney nog( sl d030 3o asodond ay4 • sac layl : zeta jJano st sasuodsaU asoy4 uo 4uawwoo o4 otlgnd ay4 oo4 A41 un}loddo ay4 aa43e passaippe aq I I ,Aay4 Ong : sa4l jo •awt4 4ey4 4e passaappe AIleJt31oads aq pinoM satotnbut 1noA IsaA : zeta imou WOJ4 sAaaM OM4 awoo lt ►M obe s�jaaM oM4 apew am 4ey4 saijlnbUt 314tOads ay4 lie o4 sasuodsa.1 4ey4 awnsse uay4 I oa : sa4l 1D ZAUowt4sa4 aMe4 l ao03aq 3_4e4s 3o suo t ,4sanb cue aaay4 aaV : uos l l M • 4joda1 44e4s ay4 apnlouoo pinoM 4ey4 . anoy ay4 4e 6ullool pUV • 6ut4aaw snolnaUd ay4 4e 4no 4y6nojq uaaq 4ou pey 4ey4 suiaouoo 0o sanssl 01310ads Cue Ono 6utaq o4 pue 4aodaU 4oedwt le4uawuojtnua ay4 o4 potiad 4uawwoo ay4 uay4 apnlouoo pinoM 4ey4 4nq - s;uawwoo o4 asuodsai asoy4 ssnoslp uay4 ueo llounoo aye •Alsnotngp •uol4eaaptsuoo anon iO3 s4uawwOD asoy4 04 asUOdsaj ay4 4uasaad but4aaw 4xau lnoA 4e uay4 ueo am 4ey4 Os pollad 4UawwOO 400daj 4oedwt Ie4uawuoitnua ay4 apnlouoo 04 lie ,40 4sal3 st 6uluana sly4 6utjeay ay4 40 asodind ay4 Auty4 I ' 4ey4 a4e4s o4 a� lt awl4 sty4 4e ptnOM 34e4S • UOI4eN a44 Ul 4nq a4e4S ay4 ut ALuo 4ou s4aaj4s 6u t ddoys 4saq ay4 3o auo oased l 3 a�lew o4 s l eo6 lleaano ono 3o uot4e4uawaldwt ut oased 13 6uole 6utjan000 Mou s l yo tyM 4uawdo l anap 30 adA4 ay4 off. ,(Ue4uawa l dwoo pue 6ut11nOoo Mou st 4eyp 4uawdol8nap .4o adA4 ay4 y41M 6961 `Z I 8390130 9N I133W l I3Nno:) A1I3 183S30 WIVd dwin93d S31nN I W t MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 12, 1989 or000sed change of zone , development agreement , and the other aspects of this complex project . O_rtegas Mr . Mayor , this part of the hearing should be in conjunction with the Redevelopment . You remember that . . . Wilson : Thank you very much . Before we take testimony . I wou 1 d 1 i ke to ca 1 1 the Redeve lopment Agency meet i na to order and ask the City Clerk to call the roll . G. i_1.1igans Member Benson . Benson : Present . Gilligan : Vice Chairman Crites . Crites : Present . Gilligan.: Member Kelly . Kelly: Here . Giiliq�ns Member Snyder . Sny_der_. Here . G1lliq.an2 Chairman Wilson . Wilson : Here . Okay, we are sitting as two bodies at the moment . the City Council of Palm Desert and the Palm Desert Redevelopment Agency . We ' II take testimony now from anyone who wishes to add additional comments on the environmental imF+act report . Yes , Mr . Simon? Simon : Mr . Mayor and City CounciI members , my name is Gregory Simon . I ' m Director of Ahmanson Commercial Development , 11111 ( I always have to remember it ' s five 1 ' s ) Santa Monica Blvd . , Suite 2127 , Los Angeles 90025 . I just wanted to start our comment period in the same manner in which Mayor Pro-Tem Crites closed the last meeting , and that was in a very up , very thoughtful , and a very positive manner . Since the last meeting, our staff has been meeting rather intensively with not only the City staff but with our consultants in addressing the very 19 0z aIgenIen Alan e s , 41 'Tuy ' g4ed sJa4uled sl yootgm 60be sleaA l euanas seM 41 se 1 I I A2My6 l H 04 A4Jado.ad aq4 w0a3 4uawasea 4003 09 e sey A4jad0ad uoAue3 xo3 aq4 -AlpUO3,;G • 4aaj4s of lgnd e si 41 os g4ed sJa4u' ed 30 aa4oeueyo of lgnd aq4 a4e3en 04 auop 6uly4Aue uaaq s , aJay4 4ey4 anallaq 4 , uop 1 •Aulnbu1 awos apew I • A41 :) ay4 ul 4aaa4s ollgnd e sl Mou -. ► se 4aa-i4s 01lgnd a se pa4aldwoo aq • 4oe3 u1 pinoM y�ed SJa4u1ed 4ey4 pue lauueyD aq4 4e pabplaq aq o4 seM ' pauaaouoo seM aadOlanap ay4 se leso00ad 9y4 se Je3 se ` g4ed sua4uled e 4ey4 •pey xo3 • aW -poo4siapun pey am puy • .}aodaJ 4oeowl le4uawuoalnua aq4 30 uJaouoo jnoA 3o sj@44ew 4ueo13lu6ls ay4 40 auo 4seal 4e .10 aa44ew 4ueo131U616 ay} 4ey4 aq o4 pue4siapun 1 yolyM 4uawala uoi4elnoaio ay4 o4 4oadsa.1 y41M aney am 4e14a. uaaouoo s1144 Aq pa4oedw1 A ( 4ueo13lubls Alan s l 43aro id uoAue :) xo3 ay :} 42L44 pue4sJapun o4 pue �Ioeq 4 1 s o4 awl 4 Al t ea.l s , 41 �Iu l t44 I 4.ey4 4sabbns 04 aM11 30 4aos 4snf pinoM 1 puy • aney noA A14uauedde 4ey-4 ja44a l e )Ija l :) A,41 3 aq4 o } aan 1 l ap • uoou la44e sIy4 ` plp I puy • ueadde I 4et44 pa >lse pue 6uluana s I y4 ajay aq off. a 1 geun seM ay I xo3 • aW 30 4 1 eyaq uo a4e4s 04 ajay w, I puy • 4aasap w led u l ejegaeq e4ueS 92Z sl ssaappe Aw pue 4aalaJad wally sl aweu riw . saA `saa aaad 14aodaa 40edwl le4uawuoalnua ay4 bulssaJppe nuowl4sa4 Ieuol4lppy • s }uawwoo anoA 103 nog( >{ ueyl -iu0SI►M • awl4 anoA a03 n0A )lueyl • 4ey4 buowe 4say614 spue4s 4Jasat7 wled aelno ► 4aed ul Muly4 I pue ' Callen sly4 anaas o4 A41 unwwoo lle4a.a ay4 30 aseq peoaq a ul 4saaa *4ul 6uoj4s A -Jan e aaujeb o4 alge @jam am Alsnoingo puy • 06 o4 a ll pinoM Aay4 ajagm paploap uol4lsod sly4 woa4 pue 4u9saG wled 04 aweo s4ueyoaaw pue s4ueua4 asoy4 lie Aja4eun4J04 A4lunwwoo J1a44 aAJas pue ul awoo 4ueua4 a 6ulney 4noge Mle4 04 a�l11 pinoM oyM ApogAjana 4ey4 sl yolyM sa4e4S pa4luq uJa4saM a44 J03 uolssas 6u l iew- leap e ' aa4ua3 6u l ddoyS 40 llounoo leuol4euaa4ul aye. o4 ;soy aq4 uaaq sey 4aasap wled 16ul4aaw 4sel ano souls wIja4u ► 9y4 ul pue u0141ppe ul • asl �aadxa alay� sn anl6 04 ajay Ono aldoad 30 adA 4y61 u a144 6u l 44ab u l a4ejad000 off, a l qe aq o4 adoy am Moy 4noge uosllM aoAeW 04 Mle4 o4 aoueyo a pey an , l • 6ul41oxa A lain nua6 s , 4l • aanow a l doad aq4 uo apew seM 4ey4 u01 -4e4uasaad a o4 sasuodsaa pue sapn4144e anl4lsod Aaan aney aM • a 13 a44 04 an 14e l a.a s4uawwoo a44 y41M A4aJ l 4ua s41 ul leap pue azlleUl3 ueo am 4ey4 aap.io ul 4y61uo4 uo 14aas 4uawwoo 0 1 l qnd ay4 apn l ouoo o4 a l qe 6u l aq o4 paema03 pa�1001 am puy • paslej ajaM 4ey4 sanssl ln34y6noy4 696 t ';I ;390100 9N 1133W I[ONnoo Al[O 183S3U WIVd dV In9 3b S3inN I w MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 12, 1989 right , and it has always been Mr . Fox ' s intent and while I haven 't had a chance to review the proceedings there has always been an understanding that access to 'the property would be from Highway III as well as the north side . That ' s something we can delve into, but in my personal discussions with Mr . Fox , that ' s always been a factor . So the point I would like to bring out that I 'm here trying to speak in some respects on behalf of the future owners of that project . While it has had some controversy with respect to it , I think it ' s a fact that it will be developed and it ' s I believe in everybody' s best interest that it be developed to its finest quality possible . And in my judgment that means reasonable access through this property , and it ought to be something that you can be Proud of as far as access is concerned to the property. You know, the players in some respects are still the same. It ' s the Ahmanson Company that sold off the property to Mr . Fox ' s predecessor , has granted the easement to Painters Path . And they' re now in , and I believe they' ve got an obligation of good faith and fair dealing to deal with us in a reasonable manner with respect to that property. And that ' s a position I ' ll advocate and while that is a matter of , private matter , the fact that Painters Path is a public street and that our access is to Painters Path puts the City into the arena because the developer , I believe , made a reasonable request for the bridging of Painters Path . It seems to me it was recommended to you by the Planning Commission . I 'm not an expert on traffic , traffic standards , or what is beneficial to the City, but it just seems to me and I am a citizen of the City, that it would make sense that there be some fashion in some manner that the El Paseo traffic could travel to the commercial development on the west side of the Channel without going onto Highway 111 . I think that makes some sense, so as you get into this give some thought about Mr . Fox' s easement , the rights of the people to have sensible access to their lots as they' re going to be developed in the future . So, that ' s really all I have to say unless you have some questions . Wilson : I have a question , Mr . Perrier . Perrier : Certainly. Wilson : I 'm a little unclear . The easement that the Fox , or that Mr . Fox has with the property owner runs . . . Perrier : May I show you? 21 pinoM uot4sanb Aw 140t lnoA o4 ssaooe ay4 30 aotoyo unoA t pey nog( _4t st butAes w , I lle pup Ono pu13 ueo am aans w, I -Mount noA - 4ey4 - -.nq • • •os • S }Je-4 ay4 30 u014-Da I 10oaa AW s , 4pyl * A41 :) ay4 Aq paainbaj seM Su014oaalp y4oq ul SSaJJe 4ey4 st U0l }oaIl00aA A ' ltaM ::asiaJad • sleaw 4uaaa341p Atalt4ua 40 oonet4 ay4 pey • 4ey4 _40 aonel_4 ay4 S t y4 30 cone l4 ay4 4ey4 bU t �taewaj 4sea t 4e }snC w , I 4nq •y4104 os pue u0 os pup s4uawwoo asoy4 Ite u04 but �oot pue S4dlaosuea4 ay4 y6noay4 �Ioeq 6utob ut 4uabtllp aq lllM noA 4ey4 @ins w , I MoN • o-4a o4a ` 04a ` 0t4-4ej4 Aq paiay4oq 4ou aaaM atdoad 4ey4 os ssaooe leana ay4 40 ssautn3asn ay4 wtetooud Atgsaujea xod • jW butaeay pue apts 4eg4 4e xoJ • aW y4lM (sap ay4 40 apIS sly.} 4e bul441S aagwawaa I • ssaooe Aaewlad sty se 140aCold sty 30 y4nos ay4 o4 st yotyM eaae 41noo stuua4 al4411 ay4 . eau do sassouo -4ey4 abpljq but4stxa ay4 asn o4 payslM ay 4eg4 puy • y41o4 os pue uo os pue g4ed saa4uled woa4 330 4ey4 tte butleas pue eaJe 4ey4 30 4no 0143eJ4 aye. 40 lie 6utdaa>l 4o At4uanbola a�lods ay • uoAuea xo j 6u l uaaouoo A41 o .ono o4 a04 t s l n A l )taaM a seM xo j • iW uayM obe sjeaA awoS • a6ueyo ){ l o4 J03 pooh S , 4egm 40 suot ;daoaad Moy 4e pazewe w, I :sa4ia) , sata� • uW :Jost -M • 3leyaq ;no ut y4ed sJa4uled abpluq o4 Maas o4 pe4ebttgo au ,Aay4 'At � UeJ4 *� uly,. am Aqm s , 4eyi - ssaooe awes ay4 sn apinoad 04 aw14 sty4 4e sn y41M ute4 aq o-. 6utteap ale4 pue y4le3 pooh 30 uot4ebtlgo Ue aney Aay4 anatlaq am puy • Mou saop 41 4ey4 ssaooe .1a44aq Aj 4ueo 13 t u61 s pap l noid yo t yM • I I I AeMy6 l H aye seM y4ed saa4uted • • ( aealoun ) pue 4y61a saaiaaad 14oajaoo 4ey4 sI • III AeMyblH 04 4no uay4 pue 'anIao 6utaeM paaj off. y4ed GJ@4u l ed uMop ' y4ed sJa4u l ed o} uMop 4Jasaa w led 30 A4 t 0 ay4 04 ssaooe aney op ease 4ey4 u l a t doad ay4 • S t y4 uo ap l oap am Moy 30 ssa l piebai sp.10M aay40 u I :uos l l M ' St 4Uawasea ay4 auayM s , 4ey4 puy • g4ed sJa4u l ed su l oC 41 pue 4uawasea 4004 09 • • • :Ta i JJad . . .oste pue auoydojo lw a44 as tJaad • jW puey noA p l noo : uos l l M (Atjeato aeay o4 algeun ) aaata.iad laseald Ono 41 4utod nog( pinoM : uosltM # # f # # # # f # f # # # # i f f i # f # # i • • 6961 `Z I 8390130 9N [133W 1IONnOO AI IO ld3S3a NIVd dvin93b S31nNIW + MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 12, 1989 # # # IF f r w1r f t=Fi :tip'• _t,:: S would you nrefPr ? And I ' l l State t �r ! hnti2 future owner; of those 1 ot_g . I think the henef= i tti t=rnm the acre-,,.; tr, Hiahwav 111 are measurably benef m it to the or(�;nerrv . W i 1 _on Thank yr)Ii . Mr . P e r r i er , for \/our r_omrnrnt think this additional input we will take under ddvtSa III Nnl when we address that issue of Plan A or B . The next additional testimony on the environmental impact report ? Seeing none . I will ask the Council if they have any additional questions or comments on the environmental impact report . Kelly: I guess I have to make sure my comments fit into the environmental impact report? Wilson : We' ll let Mr . Diaz tell you. . . Kelly: He' ll tell me if they don' t . One of the things that came up at the Recycling Conference, well on recycling , but came up at the Recycling Conference that has never come up at any other conference that I ' ve been to on that particular subject , that is with all the new laws it is imperative that recycling be addressed in all zoning ordinances , which needs to be included in these zoning ordinances . Probably, that ' s an environmental impact . Where it fits in and how it fits in I don ' t know. Wilson : I guess the question directed to staff is to whether or not that appropriately belongs in the EIR or part of the development agreement , some kind of. . . Diaz..: We can address that in the general response to the comment and obviously we' re working on the recycling within the zoning ordinance that would apply to this project anyway. Kelly : And another mitigation to the traffic along with the people mover is other public transportation and proper turnouts and conditions that encourage people to use public transportation . Wilson : Is that so noted? Diaz : Yes . Wilson : Mrs . Benson , do you have any additional EIR comments or questions? 23 low otwouoo3 ssaulsng - sao40aal0 40 paeog ano 30 bul4aaw 4u t oC e off. Auedwoo uosuewyy aq4 Aq uo 1 4e4uasaad an t sua4xa �. 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And I just wanted to reiterate that . I believe that that communication was a part of, if I 'm not mistaken Ray , a part of that EIR too, wasn 't it? Diaz : Yes , I believe it was . Ehrler : I believe that was a part of that report as well , that written comment and then you ' ve also received it before . So I just wanted to reiterate that support on behalf of the Board of Directors . I think the ' Ahmanson Company has demonstrated its commitment to the community to do the best they can to work out whatever arrangements will be most beneficial to the entire community, and they are to be commended for that and as the Chamber looks at it , we think it wi l l be ultimately a very beneficial project for years to come. Thank you . Wilson : Thank you very much . Next person who would like to give testimony in FAVOR of the proposals before us . Powers : Mr . Mayor and members of the City Council , I 'm Bill Powers , Chairman of the E1 Paseo Business Association . We are in support of the Ahmanson project . As a matter of fact , on October 5th , we passed a resolution, which I ' ll read to you , and I have copies for the members . " At the October 5th , 1989 , meeting of the Board of Directors of the El Paseo Business Association , the Board voted its unanimous support of the Ahmanson Development Sun Lodge project on El Paseo as well as the balance of their developments along Highway III . By its resolution of support, the Board hopes this project will serve as a centerpiece for a strong and vibrant E1 Paseo. " And as a member and Chairman of that Association , we look favorably on this project because it will add to what has been mentioned earlier about El Paseo being the class act of the desert and possibly California and maybe even the Nation . We hope that would be what could happen . But it ' s the vitality and the synergism and everything else of it all tying together that makes a lot of sense for us , and we endorse it completely. 25 9Z Zdew ay4 uo 4snC bu l y4awos noA Moys 4snf 1 Aew • 4ng • pa t qe-. 4o 4,AOS am 4ey4 bu l y4awos seM 4ey4 agAew 4ybnoy4 4snC I pue dnoj6 uosuewyy ay4 woJ3 anI4e4uasajd9a ay-. y41M but � le4 4snf seM I ttaM abe.4S •alge4 ay4 uo tl14s s , 4l a4on e o4 sawoo 1a44ew ay4 1I4un 4nq • lesodoad uay4o ay4 JOAe4 Aay4 4ey4 seM 6ut4aaw 4set ay4 woj3 snsuasuoo aye �u1y4 1 • 4u1od s1y�. 4e p904an uaaq 4, usey 41 • paooaa ay4 40aia0o 04 a)tlt p , l :uostl-M • eaae 4ey4 uo 3134eu4 aiow 4ueM 4 ,uop am 4ey4 A16uoi4s Iaa3 At teaj am asneoaq yseM ay4 nano abp l aq ay4 4ueM -; , up l p am asneoaq A l u t ew seM 41 pue pao3,an uaaq s , 41 ssanb I • u l ebe 41 aas o4 a>tlt Alleai p, I pue ` ttaM -4ey-4 uetd uosuewyy ay4 30 1 ueld pue4suapun 4, uplp Alteei 114,uop 1 puy • u1e6e 41 4uasaud 04 bu l 06 w , I pue • peq ao poob ; I aq • eap I ue y4 I M do aweo I puy •Mo14 3134eu4 ay4 4noge paujaouoo Aldoap AJ@A aje 4ey4 s4lun 1ay4o 40 jagwnu a @41nb aje aaay4 tlIyabP3 do uo uay4 as inoo 30 pue 4noge paujaouoo a i , aM 4ey4 aad I dpueS 4e s4l un 90£ aae aaayi •Aemo l oS •eS ' es :uMoumup Zteuosjad a se 4snC 4ey4 Mse 4snC 1 ptno0 Zdotanap 04 pua4uI xod • JW saop s4ol Auew MOH • uot4sanb Ito l nb auo aney I • .gad I dpueS 4e a6e4S auueor w, I :a5—e4S • ssaippe pue @weN • a�tods ;snr - ssalppe sIy aneb pue a){ods AlsnoInajd oyM • asIJJad • jW Zade4 ay4 a03 aweu s I y a4e4s as l .quad • JW PIP •p.aooal ay4 Jo3 LNOI1ISOddO ut Auowt4sa4 leuot4lppy • noA )tueyi : uostIM , noA Mueyi • 4uawwoo Aluo Aw s , 4eyi • y4ed sla4uted 30 a3ua4stxa aye 40 4uawa6pa t Mou)toe ue to 6u I y-4Aue to speo i o t t qnd ou aas I • lauuey0 ay4 30 apl s 4saM ay4 uo uo 14e t not t o ay4 J04 6uIstew aj ,noA lesodold 4egm pue4suapun 4, uop I pue Moy aas 4,uop I •uol4elno.ilo apnlout saop uot4ejaptsuoo anoA A 14uaiedde aou i s 4ey4 Mse p t noM pue paujaouoo s t Ja44ew sly4 se ae3 se paooaJ ay4 30 4aed a apew AtsnotnaJd @pew 14ey4 s4uawa4e4s ay4 aney o4 aptIt ptnoM I : uaIJJad ' NOlilSOddO ul AuowI4sa4 J03 1teo t ( , I `auou butaaS 180Ay3 ul Auowt4sa4 teuot4tppy • saaMOd iW lyonw Alan noA )tueyi : uoslIM Z06 i ';1 8390130 9N I133N l I3Nno3 Al[3 183S30 WlYd avin938 S31nN l N MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 12, 1989 # # # # # # # # # # # # # # # # # # # # # # # # # Wilson : We ' ll give you a microphone here that you can use . please . Please use the microphone because we are taping those proceedings . Stage : Alright . When we had a mild rainstorm recently, the flood channel did its bit I guess , but an awful lot of the City will tell you of dirt and rocks and so on that is stacked against the channel and against Edgehill washed down onto Edgehill . It was a real mess , and a dangerous one . My proposal is that somehow that area be walled, that there be consideration for some sort of a wall , and a wider street at Edgehill giving a service road of a sort to Edgehill , with a stop sign . I 'm sorry you ' re not able to see this . . . with a stop sign at this very dangerous corner of Painters Path and Edgehill and a divided road. There ' s almost room, there' s room for an ample two- lane road here now . But if this bank along Edgehill were cleared and the road were widened , there could be two roads , two lanes , and there could be a service road all along this area , which I would think might be a serious consideration that hasn't been discussed at this point . That ' s Edgehill . Then , turning here at this very bad point , which is a big consideration, here you have not developed anything yet . And they ' ve talked of giving Sandpiper a park , they' ve talked about putting up a wall , one thing or another . There is quite a wide, Painters Path is quite wide actually. And E1 Paseo has dividing islands that are even wider than the road, so that if this area were widened for a two- land road, since they' re going to have an access road coming out of their new development , and if we were to have a service road along Sandpiper so that that would run not only for the good of the Sandpiper but mainly, yeah , for really for the good of Sandpiper . And, but it would also continue on up Edgehill for the good of the people that live along Edgehill who have built there for years in good faith, and there are many of them, many more than fifty. I think that might be something to consider , where right now there is land available to do that . The worst , one of the worst spots in our whole Palm Desert area was created when there was an access road coming out of TGI Fridays and The Wherehouse and all the rest of it , right onto El Paseo. There ' s no way to have good traffic control there , and they zip across there into El Paseo, and they zip across there onto Painters Path, and that I said last time . But I ' ve given it a lot of thought , and I do think this extension might be interesting. 27 6 • 4ey4 a4ou os tttM am : uosltM • aae am uay4 ' eaje but {.led a .103 4ey4 asn Aay4 � I • ajay4 *t.led o4 6utob aj ,Aay4 ssalun ' sty4 4sute6e 4ou aj ,aM 4nq •Mount noA ' sey 4snp ay4 ' uaaq an , aM puy • tteW ay4 pup I I enb au0 pup ajag4 seM yseM ay4 pue u t aweo uu I s.la [ aneji uayM pue III AeMy6 t H bu t uap tM ajay-4 ut a.laM Aay4 uayM • sue.11 t eo s t aney am wa lgOjd 4suOM ay- ' .[ [ am ' .too 6ut �{ led lob 4ey4 butsn uaaq an , Aa(4'4 puy • aaay4 4a)1jew s.lawje_4 a 4nd 04 6u t ob seM 4uawdo t anap ( .lea t oun ) a layM 14ey4 pasn an ,Aay4 'an ,aM pue ' aJay4 putyaq 4t46t .1 ant t am Ilam • uot4e4s se6 (` 6utAI3 pue 4uejne4sad s , uagnaa wOJ4 ssoaoe 16u t jeM pa.13 pue s4aaw Ill ajagm 4noge ujaouoo e aney op 14nq ' 41 o4 pasoddo 4ou w , I puy • ButjeM pa.13 uo ajay4 uul slatanell wOa3 4aa.l-4s ay4 ssojoe 4snf ant [ am • antua e}tuezueW OSbZL ' s.lan3 aney w, I : slan3 INOIlISOddO ut Auowt4sa4 leuot4lppy • noA Mueyl : uostIm • noA �tueyl • 4Ou adoy I ' ltty ay4 uO do atdoad Auew 4ey4 aas o4 y6noua 6uol ant t ( l , I 4ey4 Mou}t 4,uop I puy • uoAueo xo3 uO a tdoad SS 40 ajeo aMe4 off, ajay4 ssoaoe abp t jq a 4nd o4 uoseaj A t uo ay4 to p t 1oM at44 ut uosea l ou aas I puy • 6u t pue4siapun Aw seM 4ey4 Ong • Moys IIIm sade4 at44 agAeW • MOu )j 4,uop I •a6pl lq a aney off. 6uto6 a.1aM Aay4 poo4s.lapun uewa [ 4uab s t y4 ' MON „ • 4ou aJ , aM ' ON,, p l es aw t 4 4ey,4 ,4e ltounoo aye. 'pies Aag4 pue „Zysem ay4 ssoaoe a6pljq e 4nd o4 6utob noA aae„ Pees pue ajay poo4s Alleol31oads I pue ' away seM xo3 - jW uayM sbut .leay ay4 4e seM I • a6ptuq e apntout 4ou saop yotyM ' Z uetd jo g uetd 4noge butMte4 a.1 , aM 4ey4 A41jeto o4 4ueM 4snf I • I to 4e 4oafo.id s ty4 off. uot4tsoddo ut 4ou Atteaj w, I 'aney I •plots useI aye 4a6 a3tM Aw 4al 4,ueo I pue 'abe4S uop st aweu AW LNOIlISOddO ut Auowt4sa4 teuot4tppy : uos [ tm •way4 a4enlena pue 4eyM aas pue g41m y6no lye awoo ueo aM uo t 4do A-1ana 4e )Ioo t 04 paau am : sa4 t jj • noA mueyl :a—B S •Muty4 I ' y4oq sjaMIo3 - jW pue zeta - jW : uosllm •o4 pe l 6 aq l t l M I 4nq 'aas off. ot4m MOUM 41 up t p I ' 4ey4 op o4 aM I t A t t eaj p, I ` yea, ':a ee4S Z 4ey4 4noge Mo.1.lowo4 zeta ' JW y4 I M 4 t S I n Pup eapt ant4enouut jnoA aMe4 o4 6uttttM aq noA pInoM : sa4tjo. 6861 'ZI 8380130 9NI133W 11ONf100 AlIO 183S30 W1Vd dvin938 S31nNIW MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 12, 1989 Evers _ Okay, so they won 't be traveling back and forth and rollers won 't be going down our street any more , and trucks , and . . . We ' ve got all kinds of pictures . So anytime you want to see them let us know. Thank you . Wilson : Thank you for your input . Additional testimony, please ? Anyone in OPPOSITION? Is there anyone else. Yes , sir . Dresser : Good evening . My name is Dan Dresser , and I live at 43-900 Joshua Road in Palm Desert here. And I 'd just like to reiterate what my neighbor just said because it was just awful and it was l i ke l i v i ng in a truck stop and so , as long as they don ' t park there 1 don ' t have anything against it either . Okay? Wilson : Thank you for your input . Any additional testimony? Seeing none , then I will call on the applicant . Is there anything he wishes to refute that might have been entered into the testimony this evening? Applicant : Mr . Mayor , I would like to take the opportunity to consider all statements that have been madN tonight 1n order to rebut 1f necessary , certainly t ,_) respond as we intend to respond at the next Council meeting . 1 'd like to take that opportunity . Wilson : Okay , with that understanding , we will keep t- hi public hearing open . It would be inappropriate to take acti ,)r; on this until we get the comments on the EIR and have the -0 ,jFF analyze this entire package and come back with a recommendari �)., to us . Mr . Diaz , is two-week continuance appropriate? Diaz : Yes . Wilson : Does Council have any questions of staff or of in the audience or any questions before I entertain a mvti ,in r continue for two weeks this public hearing? Benson : I 'd just like to say in regard to Buford' s , tof, , "lit if two weeks is sufficient , we certainly don ' t want + Tuesday before Council in order to digest the answers . Diaz : My staff , super Planner Phil Drell , will have response to comments to you before the Tuesday befnr Thursday . Wilson : It ' s called buck passing? 29 0 E aa.13 uo uol4e-4lwll 4gDLay 4003 xIs ay-4 pasoddo osIe aH •way4 anowaJ 04 pa0jo3 aq pinoM Aay4 • s6u ► pIlnq asa44 04ut 4uaM s4ueua4 Mau se pue 4-lasaa wIed uI sassauisnq Auew uo pa4sixa Apeaate Aa44 4eg4 pies aH • s3oou paesuew ao s;adeaed uo subls but4lglyojd pasoddo • oipul 64aaa4S utnle0 OZI -9b - , Auedwo0 u6IS lei .aadwl ` 31JN3 Wlf' 2iW *A410 aq4 o4 aoue4sisse 4eaab 3o aq 04 panojd pe4 yoiyM aa441WWoo sig4 uo pa4ed1oi4jRd oyM aagwe40 a44 3o s.iagwaw ay-4 tie pue as l -l43 ' JW pa)iuey4 uos l l M uoAeW ' bu t m iom aje Aat44 Moy aas o4 I aeaA a uey4 aa4e i ou ' sy4uow 9 ul ajueuipjo Mau ay4 30 uOL4e4uawaldwt ay4 MatnaJ Iljuno0 ay4 '4ey-4 6ui ){se Aq papn ( ouoo aH • saullap ! n6 4ol -r4s g4iM siseq Ienpinlput ue uo panoadde aq 04 way4 6uiMolle pue s6u l uMe 04 an i 4e I as aben6ue l 4uauino 6u t u i e4a j pa4aoddnS ( E ! paute4aa aq pinoys buipuoM 4uaaino -41a3 - s.totoo . aa,IL44 04 su6 t s 6u 141w I I pasoddo ( Z !A4l wao3 1 un ap i M-a4e4S A41 ) aye an16 pinoM 41 se liouno0 aasq ub1S elua0311e0 4o a4e4S aye. Aq papinoad suo141u13ap aye. 30 u0t4. 4uawatdwi puawwooaa o4 panut4uoo 41 ( 1 : suaaouoo aauy4 aney pip aa441wwoo ay4 pies aH • sautlapinb 4oti4s iapun ' 0 ' 8 ' V a144 04 s Ienojdde asoy-4 4_4a l Jay4ej 4nq su6 t s uoau ueq 4ou pip yoigm auo ay4 se ttaM se sltlMs uot4euipa000 jotoo uo ubtsap y:41M sienpinipul papuawwooa.a y3114M uotsslwwoO Mainaa Iean4oa4lyoaV ay4 o4 sa6ueyo pasodoad aye. paaone3 Aj5uoa4s Aag4 pies aH • sa6uey3 asag4 uo A410 ay4 g4lM pa)iJOm yo i yM aDJ04 �jse4 a pai t eyo pey ay pa4ou •aouawwo0 4o aagwe43 a44 4o ao4oaJ I a an 1 4noax3 ` 8318H3 NVO ' 21 W : a�ods butMotl03 ayl ' suotslnaJ pasodoid aye. 30 .aone3 ul Auowt4sa4 pad. 1 nu t pue uado but jeaH o I I qnd ay4 pane I oap uos l I M aoA2W • uot4epuawwooaa pue 4jodaJ 33e4s ay4 paMatnaa zeta • aW ( '686 I 82 uagwa4daS 40 6u t 4aaw at44 wo.13 panu t '.uo0) ' SONINMV (INV SN91S 01 S3IlddV 1I SV ` 89 NOI103S ` 30NVN I Oa0 NO I S 3H1 01 S1N3WON3WV 30 IVAOdddV 803 1S3n1 3d ' V • a4OA snowiueun Aq patiaeo 41 pue • uot4ow ay4 papuooas uosuag aagwawtlouno0 • panow os sa4luo uewt1ouno0 • sly4 anu14uoo o4 uot4ow a ute4ja4ua o4 a4etadoidde aq ptnoM 41 Mou oS : uosllM 14y6tj 5utai ;aj Allelol330 aJ04aq 4oe 4sel sly s . 4I : sa4la0 # # # f f 686; `Z I ;390130 9N I133W l I ONnO:) AI I O ld3S3a WlVd 8Vl(193d S31AN I W 22'7140 EACH DOCUOIT TO WHICH THIS CERTIFICATE IS ATTACHED, IS CRTIFIED TO BE A FULL. TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE AND ON RECORD IN MY OFFICE. i Bated: SHEILA R. GILLIGAK City Clerk City of Palm De Ca'arms ORDINANCE Ng. 590 � U AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A CERTAIN DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND AHMANSON COMMERCIAL DEVELOPMENT COMPANY. THE CITY COUNCIL OF THE CITY OF PALM DSSLPRT DOES ORDAIN AS FOLLOWS: Section 1. The City Council has heretofore certified that the Final Environmental Impact Report for the Ahmanson Commercial Development Plan, ( the "Final EIR" ) analyzes all potential environmental impacts of the proposed Development Agreement (the "Agreement" ) by and between the City of Palm Desert (the "City" ) and Ahmanson Commercial Development Company (the "Developer" ) and was completed pursuant to the provisions of the California Environmental Quality Act and guidelines promulgated with respect thereto, and the City Council has reviewed and considered the contents of the Final EIR prior to deciding whether to approve the - proposed Agreement. Section 2 . The City Council has heretofore adopted a mitigation monitoring program with respect to the mitigation measures described in the Final EIR which have been adopted or made a condition of the Approval of the Agreement. Section 3 . The Planning Commission of the City of Palm Desert has reported to the City Council that the proposed Agreement is in conformance with the General Plan and the Commercial Core Area Specific Plan of the City of Palm Desert, and has recommended approval of the proposed Agreement. Sec - 4. Pursuant to notice duly given, the City Council has hel ull and fair public hearing pursuant to law on the propos ;reement and the City Council has duly considered and has evalu' d all evidence for and against the proposed Agreement. All objections to the Agreement were heard and passed upon by the City Council and are hereby overruled by the City Council. The City Council hereby finds that the Agreement is consistent with the General Plan and Commercial Core Area Specific Plan of the City of Palm Desert. 227140 Section 5. The Agreement, a copy of which has been presented to the City Council and which is on file in the office of the Citl . Clerk, is hereby approved in substantially the form so presented " to the City Council and on file with the office of the City Clerk. The Mayor, the City Clerk, their designees, and other appointed officers and employees of the City, are hereby authorized and directed upon the effective date of this Ordinance to execute such Agreement on behalf of the City with such changes or amendments thereto as the Mayor shall determine are necessary or appropriate and consistent with the intent of the City Council in adopting this ordinance and such determination shall be' conclusively evidenced by the execution of the Agreement by the Mayor. Section 6. The City Clerk shall certify to the passage of this Ordinance and shall -cause this Ordinance to be published and posted as required by law. PASSED, APPROVED, AND ADOPTED by the Palm Desert City Council this 14th day of December, 1989, by the following vote, to wit: AYES: Henson, Kelly, Snyder, Wilson 3 NOES: Crites i ABSENT: None ABSTAIN: None J BUF,PRD A CRITES, Mayor ATTEST: 4SHEILA %�LLIGAN ity Clerk ofCalifornia 227140 ----------------------------------------------------------- (Space above for Recorder's Use Only) DEVELOPMENT AGREEMENT Between THE CITY OF PALM DESERT, CALIFORNIA and AHMANSON COMMERCIAL DEVELOPMENT COMPANY Dated: May 1, 1990 Y ----------------------------------------------------------- (Space above for Recorder's Use Only) AMENDED AND RESTATED DEVELOPMENT AGREEMENT Between 0 THE CITY OF PALM DESERT, CALIFORNIA and THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP Dated: , 1994 KKR42103 11/10/94 Draft Dev. Agreement LIST OF EXHIBITS Exhibit Designation Description A The Project B The Property C The Phasing Schedule D The Exactions E [Reserved] F The Disposition, Development and Implementation Agreement KKR42103 11/10/94 Draft Dev. Agreement —iv- TABLE OF CONTENTS Page(s) AMENDED AND RESTATED DEVELOPMENT AGREEMENT . . . . . . 1 RECITALS . . . . . . . . . . . . . . . . . . . . . . . 1 1. Definitions . . . . . . . . . . . . 4 1. 1 Defined Terms . . . . . . . . . . . . . 4 1. 2 Agency . . . . . . . . . . . . . . . . . 4 1.3 Building Ordinances . . . . . . . . . . 4 1.4 Development Approvals . . . . . . . . . 5 1.5 DDIA. . . . . . . . . . . . . . . . . . 5 1. 6 Enacting Ordinance . . . . . . . . . . . 5 1.7 Exactions . . . . . . . . . . . . . . . 5 1. 8 Existing Land Use Ordinances . . . . . . 6 1. 9 Reserved . . . . . . . . . . . . . . . . 6 1. 10 Land Use Ordinances . . . . . . . . 6 1. 11 Mortgage . . . . . . . . . . . . . . . . 7 1. 12 Precise Plan. . . . . . . . . . . . . . 8 1. 13 Processing Fees . . . . . . . . . . . . 8 1. 14 Project . . . . . . . . . . . . . . . . 8 1. 15 Property . . . . . . . . . . . . . . . . 9 1. 16 Reservations of Authority . . . . . . . 9 1. 17 Certain Other Terms . . . . . . . . . . 9 2 . Effective Date; Term; Amendment . . . . . . . 9 2 . 1 Effective Date . . . . . . . . . . . . . 9 2 . 2 Term . . . . . . . . . . . . . . . . . . 9 2 . 3 Amendment . . . . 10 3 . General Development of the Project . . . . . 10 3 . 1 Project . . . . . . . . . . . . . . . . 10 3 . 2 Project Timing . . . . . . . . . . . . . 11 3 . 3 Building Permits and Other Approvals and Permits . . . . . . . . . 11 3 .4 Procedures; Limitations on Exactions . . 12 3 . 5 Effect of Agreement . . . . . . . . . . 12 3 . 6 Operating Memoranda . . . . . . . . . . 15 3 .7 Limitations, Reservations of Authority and Exceptions . . . . . . . . 16 4 . Specific Criteria Applicable to Development of the Project . . . . . . . . . 18 4 . 1 Applicable Ordinances . . . . . . . . . 18 4 . 2 Amendment to Applicable Ordinances . . . 19 4 . 3 Easements; Abandonments . . . . . . . . 19 KKR42103 11/10/94 Draft Dev. Agreement '1 *400 5. Public Benefits . . . . . . . . . . . . . . . 20 5. 1 [Reserved] . . . . . . . . . . . . . 20 5.2 Palm Desert Redevelopment Agency . . . . 20 5.3 [Reserved] . . . . . . . . . . . . . . . 20 5.4 (Reserved. ] . . . . . . . . . . . . . . 20 6. Review for Compliance . . . . . . . . . . 20 6. 1 Periodic Review . . . . . . . . . . 20 6.2 Special Review . . . . . . . . . . . . 21 6. 3 Procedure . . . . . . . . . . . . . 22 6.4 Proceedings Upon Termination . . . . . . 23 6.5 Hearing on Termination . . . . . . . . . 23 6.6 Certificate of Agreement Compliance 24 7. Permitted Delays; Supersedure by Subsequent Laws . . . . . . . . . . . . . . . 25 7. 1 Permitted Delays . . . . . . . . . . . . 25 7.2 Supersedure of Subsequent Laws or Judicial Action; Termination of the Development Agreement . . . . . . . 27 8 . DEFAULT AND REMEDIES . . . . . . . . . . . . 28 8. 1 Remedies in General . . . . . . . . . . 28 8 .2 Specific Performance . . . . . . . . 29 8. 3 Release . . . . . . . . . . . 30 per 8. 4 Termination for Default of Develo 30 8.5 Termination of Agreement for Default of City . . . . . . . . . . . . 31 8 . 6 Effect of Termination . . . . . . . . . 32 8 .7 Effect of Termination of DDIA . . . . . . 32 9. Third Party Litigation . . . . . . . . . . . 33 9 . 1 General Plan Litigation . . . . . . . . 33 9.2 [Reserved] . . . . . . . . . . . . . 33 9 . 3 Indemnity . . . . . . . . . . . . . . . 33 9. 4 Environmental Contamination . . . . . . 34 9.5 City to Approve Counsel . . . . . . . . 34 9. 6 Accept Reasonable Good Faith Settlement 35 9.7 Survival . . . . . . . . . . . . . . . . . 35 10. Mortgagee Protection; Certain Rights of Cure 36 10. 1 Mortgagee Not Obligated . . . . . . . . 36 10.2 Notice of Default; Right to Cure . . . . 36 10. 3 Bankruptcy . . . . . . . . . . . . 37 10.4 Estoppel Certificates . . . . . . . . . 38 11. Transfers and Assignments; Effect of Agreement on Title . . . . . . . . . . . . . 38 11. 1 Rights and Interests Appurtenant . . . . 39 11. 2 Transfer . . . . . . . . . . . . . . . . 39 KKR42103 11/10/94 Draft Dev. Agreement 11.3 Termination of Agreement with Respect to Property . . . . . . . . . . 45 11.4 Covenants Run with Land . . . . . . . . 46 12. Notices . . . . . . . . . . . . . . . . . . 47 13. Miscellaneous . . . . . . . . . . . . . . 48 13. 1 Relationship of Parties . . . . . . . . 48 13.2 Consents . . . . . . . . . . . . 48 .13.3 Not a Public Dedication . . . . . . . . 49 13.4 Severability . . . . . . . . . . . . . . 50 13 .5 Exhibits . . . . . . . . . . . . . . . . 50 13 . 6 Entire Agreement . . . . . . . . . . . . 50 13 .7 Governing Law; Construction of Agreement . . . . . . . . . . . . . . . 50 13 .8 Signature Pages . . . . . . . . . . . . 51 13 .9 Time . . . . . . . . . . . . . . . . . . 51 1 KKR42103 11/10/94 Draft Dev. Agreement -1 1 1- AMENDED AND RESTATED DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of this day of , 1994 , by and between the City of Palm Desert, California, a municipal corporation organized and existing under the laws of the State of California ("City") , and The Madison Realty Partnership, Limited Partnership, a Delaware limited partnership, ("Developer") . RECITALS This Agreement is entered into on the basis of the following facts, understandings and intentions of the parties: A. Government Code Sections 65864 through 65869.5 J inclusive (the "Development Agreement Legislation") authorize City to enter into development agreements in connection with the development of real property within its jurisdiction. On August 11, 1983 , City enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance") , establishing the procedures and requirements for the consideration of development agreements thereunder pursuant to the Development Agreement, Legislation. B. The Developer is the holder of a legal or equitable interest in the Property (as defined in Section 1. 15 below) and is entitled to have filed the application for and to enter into this Agreement. The Developer has entered into that certain Option Agreement and Joint Escrow Instructions (as heretofore and KKR42103 11/10/94 Draft Dev. Agreement -1- hereafter amended, the "Purchase Agreement") with respect to the Property dated as of May 20, 1994, between Developer, as purchaser and ACD2 , a California corporation (the successor in interest to Ahmanson Commercial Development Company ("ACD") , a California corporation, which was the "Developer" of the Property under the Development Agreement (as defined below) ) , as seller. C. The City and ACD have previously entered into that certain Development Agreement dated May 1, 1990 and recorded in the Office of the County Recorder of Riverside County, California on . June 20, 1990 as Instrument No. 227140 (the "Development Agreement") , which Development Agreement relates in part to and benefits the Property and the Project (as defined in Section 1. 14 hereof) and by which the City has acknowledged that the development of the Property and the Project as set forth therein is consistent with and in furtherance of the development goals and policies of the City. As of the Effective Date (as hereinafter defined) , the terms and conditions of the Development Agreement which are not included in this Agreement shall have no force or effect upon, and shall not be binding upon, Developer or the Property; provided, however, that in any event the Development Agreement shall remain in full force and effect with respect to all properties, other than the Property, which are subject thereto. D. Pursuant to the Purchase Agreement, Developer agreed to purchase the Property from ACD 2 , and also agreed to assume and accept all of the obligations, duties, rights and interests which relate to the Property under the Development KKR42103 11/10/94 Draft Dev. Agreement -2- Agreement, as such obligations, duties, rights and interests are hereinafter set forth in this Agreement. E. The Project consists of the development of the Property. The Project will require a major investment by the Developer in public facilities and a substantial investment by the Developer in on-site and off-site improvements. The Project has been analyzed and reviewed by the City in light of the land use standards and policies embodied in the Existing Land Use Ordinances (as defined in Section 1.8 below) . F. The City has determined that the development of the Project as contemplated by this Agreement is consistent with and in furtherance of the development goals and policies of the City as set forth in the City' s General Plan and the existing Palm Desert Commercial Core Area Specific Plan ("Specific Plan") initially adopted by the City on July 23 , 1987 (and as thereafter amended) , and the objectives, policies, general land use and development programs set forth therein. G. City has determined that the execution of this Agreement by the City and the Developer will further the goals and objectives of the City's land use planning policies by, among other things, eliminating uncertainty in planning for and securing orderly development of the Project, so that adequate long-term plans regarding the provision of necessary infrastructure can be developed and implemented, and ensuring the maximum effective utilization of resources within the City at the least feasible economic cost to its citizens. The benefits conferred on City by Developer herein will (i) facilitate the installation of certain KKR42103 11/10/94 Draft Dev. Agreement -3- vital public improvements; (ii) improve traffic circulation patterns within the City; and (iii) further the development objectives of the City in an orderly manner, all of which will significantly promote the health, safety and welfare of the residents of the City. In exchange for these benefits to the City, Developer desires to receive the assurance that it may proceed with the Project in accordance with the Existing Land Use Ordinances (as defined in Sections 1.8 below) and at a rate of development of its choosing, subject to the terms and conditions contained in this , Agreement. H. In order to effectuate the foregoing, the parties desire to enter into this Agreement in order to amend and restate in its entirety the Development Agreement with respect to the Property. i NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Definitions'.. 1. 1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set' forth below for each such term. 1. 2 Agency. The Palm Desert Redevelopment Agency 1. 3 Building Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the Property, in effect from time to time KKR42103 11/10/94 Draft Dev. Agreement -4- that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.4 Development Approvals. All permits and other entitlements issued or approved by City for development and/or use of the Property including, but not limited to: (a) General plan amendment; (b) Specific plans and specific plan amendments; (c) Zoning; (d) Tentative and final subdivision and parcel maps; (e) Conditional use permits; (f) Design review approvals; (g) Grading and building permits; (h) Precise Plans. "Development Approvals" specifically do not include this Agreement. 1. 5 DDIA. That certain Amended and Restated Disposition, Development and Implementation Agreement of even date herewith, between the Agency and the Developer and pertaining to the Project, and attached hereto as Exhibit F. 1. 6 Enacting Ordinance. Ordinance No. , enacted by the City Council on , 1994, approving this Agreement. 1. 7 Exactions. All exactions, in-lieu fees or payments, assessments, dedication or reservation requirements, obligations for on-site or off-site improvements, construction requirements for public improvements, facilities, or services called for in connection with the development of or construction on the Property, whether such requirements constitute subdivision improvements, any KKR42103 11/10/94 Draft Dev. Agreement -5- conditions of approval relating to any fees, charges, or dedica- tions imposed by the Subdivision Map Act or any implementing local ordinance or any Development Approval, mitigation measures in connection with environmental review of any project, or impositions made under any applicable ordinance or in order to make a project approval consistent with the City's General Plan. Exactions do not include Processing Fees. 1. 8 Existing Land Use Ordinances. The Land Use Ordinances in effect as of May 1, 1990. 1.9 Reserved. 1. 10 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of City, (including, without limitation, the City General Plan and the Specific Plan) legally adopted in accordance with all applicable laws, governing the development of the Property, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes and all Exactions, the timing of development, and the design, improvement and construction and initial occupancy standards and specifications applicable to the development of the Property as they may be modified by the Development Approvals. "Land Use Ordinances" do not include any City resolution, code, rule, regulation or official policy governing: (a) The conduct of businesses, professions, and occupations; KKR42103 —(— 11/10/94 Draft Dev. Agreement (b) Other than as provided in this Agreement, taxes and assessments of general application upon all residents of the City, provided that the taxes and assessments are not imposed for the purpose of taxing the right, power or privilege of developing or improving land (e.g. excise tax) , or to directly finance the construction or maintenance of any public improvement in respect of which Developer is paying any fee or providing any improvement pursuant to this Agreement or the DDIA hereof; or (c) The control and abatement of nuisances; or (d) The granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (e) The exercise of the power of eminent domain. 1. 11 Mortgage. Any mortgage, deed of trust, sale and leaseback or other form of conveyance or encumbrance for financing for the purpose of securing loans of funds to be used for financing the direct and indirect costs (including, without limitation, financing costs, interest and commissions, and the refinancing of any equity investment by Developer) of acquiring, designing, constructing, developing, leasing and operating the Property or the improvements to be constructed thereon, or any portion thereof, pursuant to this Agreement, including any collateral assignment of this Agreement to a Mortgagee (as hereinafter defined) . As used herein, "Mortgage" includes all commercially reasonable modes of financing real estate acquisition, construction, or land development. KKR42103 11/10/94 Draft Dev. Agreement -7- 1. 12 Precise Plan. The plan of development for the Property, consistent with this Agreement and Exhibit A attached hereto, which shall be submitted by Developer prior to the commencement of construction on the Property for the City's approval in accordance with the terms of this Agreement. The Precise Plan shall comply with City Municipal Code Section 25.73 . 011 and shall include such information as may be reasonably required by the City in accordance with the City's requirements for precise plans for projects of a similar type as the Project. 1. 13 Processing Fees. The normal and customary application, filing, plan check, land use approval, design review, building and other similar permit entitlement, and inspection fees; which fees are charged to reimburse the City's expenses attributable to such applications, processing, permitting, review and inspections, and which are in force and effect on a general basis at such time as said approvals, permits, review, inspections or entitlements are granted or conducted by City. 1. 14 Project. The commercial/retail development and associated amenities, and on-site and off-site improvements, as described in Exhibit A, intended to be constructed on the Property, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement. 1. 15 Property. That real property which is described in Exhibit B. 1. 16 Reservations of Authority. The rights and authority excepted from the assurances and rights provided to Developer under KKR42103 11/10/94 Draft Dev. Agreement -8- this Agreement and expressly reserved to City underSections 3 .5 and 3 .7 of this Agreement. 1. 17 Certain Other Terms. Certain other terms shall have the meanings set forth for such terms in this Agreement. 2 . Effective Date; Term; Amendment. 2 . 1 Effective Date. This Agreement has been entered into by the parties as of the date and year first above written (the "Execution Date") This Agreement shall become effective on the . date on which the Developer acquires the Property from ACD2 pursuant to the Purchase Agreement (the "Effective Date") . Notwithstanding the foregoing, if the Effective Date shall not have occurred prior to the date which is six (6) months from the Execution Date, then this Agreement shall be null and void, ab J initio, and shall terminate automatically. In such event, the Development Agreement shall remain in full force and effect and the Property shall continue to be subject to the benefits and obligations of the Development Agreement as they existed on the Execution Date. 2 .2 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on May 1, 2000, unless sooner terminated or extended as hereinafter provided. 2 . 3 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits. Any amendment to this Agreement or the Exhibits as provided herein shall be effected only upon compliance with the KKR42103 11/10/94 Draft Dev. Agreement -9 procedures for amendment, if any, required by the Development Agreement Legislation and the Development Agreement Ordinance. The City shall, after any such amendment takes effect, cause an appropriate notice of such amendment to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne equally by the parties to this Agreement. 3 . General Development of the Project. 3 . 1 Project. (a) The Project is defined and described in Exhibit A, which specifies for the purposes of this Agreement all of the following aspects of the Project: (i) proposed uses of the Property, (ii) the maximum height and square footage of buildings to be constructed on the Property, (iii) density and intensity of use of the Property, (iv) requirements for the construction or provision of on-site and off-site improvements; and (v) require- ments for reservation or dedication of portions of the Property for public purposes. (b) Except as otherwise expressly provided in Exhibit A and further provided in Section 4 . 2 below, Developer shall have the right to develop the Project in accordance with, and development of the Project during the Term shall be governed by, the Existing Land Use Ordinances, subject to the Reservations of Authority. However, Developer shall not be obligated to develop the Project. 3 . 2 Project Timing. The parties acknowledge that Developer cannot at this time predict when or the rate at which the KKR42103 11/10/94 Draft Dev. Agreement -1 0- Project will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereto acknowledge and expressly agree that Developer is hereby granted by the City the vested and guaranteed right to develop the Project in such manner and at such rate and at such times as Developer deems appropriate within the exercise of its sole subjective business judgment. Therefore, . City expressly agrees that Developer shall be entitled to apply for maps, building permits, occupancy certifi- cates and other entitlement for its use at any time, provided that such application is made in accordance with the Existing Land Use Ordinances, subject to the Reservations of Authority, and that the development and/or construction of the Project contemplated or authorized by such maps, building permits, occupancy permits and other entitlement is otherwise in conformity therewith. 3 . 3 Building Permits and Other Approvals and Permits. Subject to (a) Developer' s compliance with this Agreement, the Existing Land Use Ordinances and the Building Ordinances, and (b) payment of Processing Fees, City shall process and issue to Developer promptly upon application therefor all necessary use permits, building permits, occupancy certificates, and other required permits for the construction, use and occupancy of the Project, or any portion thereof, as applied for, including connection to all utility systems under the City's jurisdiction and control (to the extent that such connections are physically KKR42103 11/10/94 Draft Dev. Agreement feasible and that such utility systems are capable of adequately servicing the Project) . 3 .4 Procedures; Limitations on Exactions. The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Agreement and the Exhibits hereto, and to the extent not incon- sistent therewith, the Existing Land Use Ordinances (subject to Reservations of Authority) , but the procedures for processing applications for such permits or approvals (including the Processing Fees) shall be governed by such ordinances and regula- tions as may then be applicable. Notwithstanding the foregoing, or anything to the contrary otherwise contained herein, there shall not, except as otherwise specifically provided herein, be imposed upon the Project any Exactions other than those set forth in Exhibit D, nor shall the fees and charges constituting Exactions exceed those set forth in Exhibit D (to the extent set forth in Exhibit D) or those charged pursuant to the Existing Land Use Ordinances (to the extent not set forth in Exhibit D) . 3 . 5 Effect of Agreement. This Agreement shall consti- tute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to specified and known criteria and rules as set forth in Exhibit A and the Existing Land Use Ordinances, subject to the Reservations of Authority, and to grant City and the residents KKR42103 11/10/94 Draft Dev. Agreement -1 2- of the City certain benefits which they otherwise would not receive. This Agreement shall be binding upon the City and its successors in accordance with and subject. to its terms and conditions notwithstanding any subsequent action of the City, whether taken by ordinance or resolution of the City Council, by initiative, or otherwise. The parties acknowledge and agree that by entering into this Agreement and relying thereupon, the Developer has obtained, 'subject to the terms and conditions of this Agreement, a vested right to proceed with its development of the Project in accordance with the proposed uses of the Property, the maximum height and size of buildings to be constructed on the Property, the density and intensity of use of the Property and the requirements for the construction or provision of on-site and off- site improvements and the reservation or dedication of land for public use, if and to the extent set forth in Exhibit A, and in accordance with the Existing Land Use Ordinances, subject to the Reservations of Authority, and the City has entered into this Agreement in order to secure the public benefits conferred upon it hereunder which are essential to alleviate current and potential problems in the City and to protect the public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. The parties acknowledge that: (a) the City has entered into this Agreement pursuant to the Development Agreement Legislation and its police power in order to address public health and safety and general welfare concerns including those relating to KKR42103 11/10/94 Draft Dev. Agreement -1 3- the amount, density, intensity and timing of development within the Property and the need for public facilities and infrastructure in connection with the Property and other property in the area; and (b) as, and to the extent contemplated in the Development Agreement Legislation, there is certain authority under the police power to address public health and safety concerns that cannot be legally relinquished or restricted by this Agreement, and the City subsequent to the Effective Date may exercise such authority by the adoption of rules, regulations, and policies which may be • applicable to the Project and/or the Property, but which do not conflict with the terms and intent of this Agreement as determined in the manner and in accordance with the standards set forth below. For the purposes of this Agreement any such rule, regulation or policy shall not be deemed to conflict with the terms and intent of 0 this Agreement if the same does not: (i) modify the permitted types of land uses, the density or intensity of use, the maximum height or size of proposed buildings on the Property, or impose requirements for the construction or provision of on-site or off-site improvements or the reservation or dedication of land for public use, or the payment of fees or the imposition of Exactions, other than as are in each case specifically provided for in this Agreement; or (ii) prevent the Developer from obtaining all necessary approvals, permits, certificates or other entitlements at such dates and under such circumstances as the Developer would otherwise be entitled under this Agreement; or KKR42103 11/10/94 Draft Dev. Agreement -14- (iii) prevent or inhibit the Developer from commencing, prosecuting and finishing on a timely basis the construction and development of the Project and the satisfaction of its obligations hereunder in the manner and as contemplated by this Agreement; or (iv) increase the cost of the construction or development of the Project, or the construction or provision of any public improvements to be provided by the Developer as contemplated herein, or the reservation or dedication of land for public * purposes, or increase the cost of selling, financing or leasing the Project or any portion thereof. 3 . 6 Operating Memoranda. Developer and City acknowledge that the provisions of the Agreement require a close degree of cooperation between Developer and City, and that 0 refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the parties under the Agreement in order to effectuate the purpose of the Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall confer in good faith with respect to such changes or provide for such additional provisions through operating memoranda to be considered in good faith by the parties, which, if approved, shall be attached hereto as addenda and become a part hereof, and may be further changed or supplemented from time to time as necessary, with further good faith approval of Developer KKR42103 11/10/94 Draft Dev. Agreement -1 5- 'arr' and City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda does not require the amendment of this Agreement in the manner provided in Section 65868 of the California Government Code, then no such operating memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement; and in the case of City such operating memoranda may be acted upon by its Community Development Director. Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any Hof the rights, duties or obligations of the parties hereunder or the provisions of this Agreement. 3 . 7 Limitations Reservations of Authority and Exceptions. Notwithstanding any other provision of this Agreement to the contrary including, without limitation, Sections 3 . 1 through 3 . 5 hereof, the development of the Property shall be subject to the exercise of the City's continuing authority with respect to the following: (a) Processing Fees imposed by City to cover the estimated or actual costs to City of processing applications for Development Approvals, or for monitoring compliance with any Development Approvals granted or issued, which fees are charged to reimburse the City's expenses attributable to such Development Approvals and which are in force and effect on a general basis at such time as the Development Approvals are granted or considered by City. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, KKR42103 11/10/94 Draft Dev. Agreement -1 6- reports, recommendations, appeals and any other matter of procedure. (c) Any and all uniform codes and regulations governing the engineering and construction of private or public improvements adopted by the City. Such codes include without limitation, the City's Uniform Housing Code, Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Building Security Code. City agrees that such codes and regulations, shall be those uniformly applied on a City-wide basis to all development projects • of a similar type as the Project. (d) Regulations which are reasonably necessary to protect the residents of the Project or of the immediate community, or both, from a condition perilous to their health or safety, or both; provided, however, the following shall apply: (i) That to the extent possible, such regulations shall be applied and construed so as to provide Developer with the rights and assurances provided in this Agreement; and (ii) That such regulations apply uniformly to all new development projects of a similar type as the Project within the City; and (iii) That the City Council finds, based on substantial evidence, that such regulations are necessary to eliminate or reduce a public danger perilous to the health or safety of the residents of the Project or of the immediate community. (e) Regulations which do not conflict with the terms and intent of this Agreement. KKR42103 11/10/94 Draft Dev, Agreement -1 7- (f) Regulations which are in conflict with the terms and intent of this Agreement, provided Developer has given written consent to the application of such regulations to development of the Property. The provisions of this Section 3.7 shall supplement, not limit, the police powers of the City as described in Section 3 . 5 hereof. 4 . Specific Criteria Applicable to Development of the Project. 4 . 1 Applicable Ordinances. Except as set forth in Exhibit A and subject to the provisions of Section 4 .2 below and the Reservations of Authority, the Existing Land Use Ordinances shall govern the development of the Property hereunder and the 0 granting or withholding of all permits or approvals required to develop the Property. 4 . 2 Amendment to Applicable Ordinances. In the event that the Palm Desert zoning ordinance is amended by the City in a manner which provides more favorable site development standards than those in effect as of the Effective Date, Developer shall have the right to notify the City in writing of its request to be subject to all or any such new standards for the remaining term of this Agreement. If City approves such request, which approval shall be in the City's reasonable discretion, by resolution of the City Council or by action of a City official whom the City Council may designate, such new standards shall become applicable to the Property. Should City thereafter amend such new standards, upon KKR42103 11/10/94 Draft Dev. Agreement -18- the effective date of such amendment, the original new standards shall continue to apply to the Property as provided above, but Developer may notify City in writing of its desire to be subject to all or any such amended new standards and City may agree in the manner above provided to apply such amended new standards to the Property. 4 . 3 Easements; Abandonments. City shall cooperate with Developer, at Developer's sole cost, expense and liability, in connection with any arrangements for abandoning existing utility or • other easements and the relocation thereof or creation of any new easements within the Property necessary or appropriate in connection with the development of the Project; and if any such easement is owned by City, City shall at the request of Developer and in the manner and to the extent permitted by law, process and consider such action as may be necessary to abandon existing easements and relocate them, as necessary or appropriate in connection with the development of the Project, all at the cost and expense of the Developer. 5. Public Benefits. 5. 1 [Reserved] 5.2 Palm Desert Redevelopment Agency.. Developer and City acknowledge that the DDIA provides for certain terms, conditions and requirements with respect to the construction of the Minimum Improvements (as defined in the DDIA) by the Developer and the payment to Developer by the Agency of the Purchase Price (as defined in the DDIA) for the Parking Rights (as defined in the KKR42103 11/10/94 Draft Dev. Agreement -1 9- low DDIA) . City and Developer agree that the payment to Developer of the Purchase Price shall be controlled in all respects by said DDIA and that in the event of any inconsistency between the provisions thereof and of this Agreement in connection with such payment, the provisions of the DDIA shall be deemed to control. City agrees that the performance by the Developer of its obligations under said DDIA shall constitute the performance and satisfaction of its corresponding obligations hereunder. 5. 3 [Reserved] • 5. 4 [Reserved. ] 6. Review for Compliance. 6. 1 Periodic Review. The City shall review this Agreement annually, on or before the anniversary of the Effective Date (the "Anniversary Date") , in order to ascertain the good faith compliance by Developer with the material terms of this Agreement. Developer shall submit to the Planning Director an annual monitoring report, in, a form reasonably acceptable to the City, not less than thirty '(30) , nor more than sixty (60) , days prior to each Anniversary Date. The annual monitoring report shall set forth Developer's good faith compliance with the material terms and conditions of this Agreement and shall be accompanied by an annual review and administration fee. The annual review and administration fee shall be in an amount consistent with then- existing City fee schedules and resolutions pertaining to the City' s monitoring program for development agreements. Neither City nor Developer shall have a duty to notify the other of their KKR42103 11/10/94 Draft Dev. Agreement -2 0- respective obligations hereunder and the City's failure to so conduct such annual reviews shall not affect the rights, protection, and benefits afforded Developer by the Development Agreement Legislation and this Agreement. 6. 2 special Review. The Planning Commission or City Council, upon a finding on the basis of reasonable evidence that there exists a reasonable basis upon which to conclude that the Developer may not be in compliance with the material terms and conditions of this Agreement, may order the Planning Director to conduct a special review of the Developer's compliance with the material terms of this Agreement at any time. 6. 3 Procedure. (a) During either a periodic review or a special review, Developer shall be required to demonstrate good faith i compliance with the material terms of this Agreement. The burden of proof on this issue shall be on Developer. (b) Upon completion of a periodic review or a special review, the Planning Director or his or her designee shall submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by Developer with the material terms of this Agreement, and his/her recommended finding on that issue. (c) If the Planning Commission, upon receipt and review of the Planning Director's report, finds on the basis of substantial evidence that Developer has complied in good faith with the material terms of this Agreement, the review shall be concluded. KKR42103 _ 11/10/94 Draft Dev. Agreement -2 1 (d) If the Planning Commission, upon recept and review of the Planning Director's report, makes a preliminary finding that Developer has not complied in good faith with the material terms of this Agreement, the Planning Commission may commence proceedings to terminate this Agreement under Sections 6.4 and 6.5 hereof. Notice of default and the opportunity to cure as provided under Section 8.4 of this Agreement shall be given to Developer prior to the commencement of proceedings under Section 6.4 and Section 6. 5. • (e) Failure to comply with the material terms of this Agreement by reason of any facts or circumstances described in Section 7 . 1 hereof shall not constitute a failure of good faith compliance by the Developer with the material terms of this Agreement. Notwithstanding the foregoing, however, the inability of Developer to obtain or maintain financing necessary for the development of the. Project shall not be deemed an excuse for the Developer' s failure to comply with the material terms of this Agreement. 6. 4 Proceedings Upon Termination. If, upon a finding under Section 6. 3 (d) and the expiration of the cure period provided in Section 8 . 4 , the Planning Commission determines to proceed with termination of this Agreement, the Planning Commission shall give written notice to Developer of its intention to conduct a public hearing as provided in Section 6. 5 hereof. The notice shall be given at least thirty (30) calendar days prior to the scheduled hearing and shall contain: (a) The time and place of the hearing; KKR42103 11/10/94 Draft Dev. Agreement -2 2- (b) A statement as to whether or not the Planning Commission proposes to terminate the Agreement; and, (c) Such other information as is reasonably necessary to inform Developer of the nature of the proceeding and the factual basis for the Planning Commission's conclusion that Developer has not substantially complied with the material terms and conditions of this Agreement. 6.5 Hearing on Termination. At the time and place set for the hearing on termination, Developer shall be given an . opportunity to be heard. Developer shall be required to demon- strate good faith compliance with the material terms of this Agreement. The burden of proof on this issue shall be on Developer. If the Planning Commission finds, based upon substan- tial evidence, that Developer has not complied in good faith with the material terms of this Agreement and has failed to cure or commence to cure any such default as provided in Section 8.4 hereof, the Planning Commission may terminate this Agreement. Developer may appeal any determination of the Planning Commission made pursuant to this Section 6. 5 to the City Council in accordance with the then-existing provisions of the City Municipal Code for appeals of decisions of the Planning Commission to the City Council. The decision of the City Council shall be based on the record made before the Planning Commission and any additional evidence Developer may introduce at the hearing before the City Council. The decision of the City Council shall be final, subject to judicial review. Developer shall have the right to cure any default as provided in Section 8 .4 hereof following any judicial KKR42103 11/10/94 Draft Dev. Agreement -2 3- decision upholding any City Council decision made pursuant to this Section 6. 5; provided however, that not withstanding Section 7.4 hereof to the contrary, the Term of this Agreement shall not be extended for the pendency of such judicial action or proceeding if . such judicial decision upholds the decision of the City Council. 6. 6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, Developer is found to be in compliance with this Agreement, City shall, upon request by Developer, promptly issue a Certificate of Agreement Compliance • ("Certificate") to Developer stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Commission and City Council that (1) this Agreement remains in effect and (2) Developer is in compliance with the terms and provisions thereof. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the certificate is issued after a Periodic or Special Review, and shall state the anticipated date of commencement of the next Periodic Review. Developer may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or Developer, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the City. KKR42103 11/10/94 Draft Dev. Agreement -2 4- 7 . Permitted Delays; Supersedure by Subsequent Laws. 7 . 1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts of God or civil commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation, acts, neglect, or breach of this Agreement . by the other party, any referendum elections held on the Enacting Ordinance or the Land Use Ordinances, or any other ordinance affecting the Project or the approvals, permits or other entitle- ment related thereto, or restrictions imposed or mandated by governmental or quasi-governmental entities (provided that the City shall not be excused from performance by reason of the foregoing if such ordinance or restriction was enacted by or otherwise insti- tuted by the City, unless the City was authorized by this Agreement to impose or enact such ordinance or restriction) , enactment of conflicting provisions of the Constitution or laws of the United States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws") , orders of courts of competent jurisdiction, or any event or circumstance giving rise to a permitted delay under the terms of the DDIA (to the extent that the Developer's performance under this Agreement is impacted thereby) , or any other cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. Each party shall KKR42103 11/10/94 Draft Dev. Agreement -2 5- promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The time of performance of such obligations, and, at Developer's request, the Term of this Agreement, shall be extended by the period of any delay hereunder. Notwithstanding anything in this Agreement to the contrary, the inability of Developer to obtain or maintain financing necessary for the development of the Project shall not be cause for an extension of time for performance or of the Term of this Agreement. 7 . 2 Supersedure of Subsequent Laws or Judicial Action; Termination of the Development Agreement. The provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with any new Law or decision issued by a court of competent jurisdiction (a "Decision") , enacted or made after the Effective Date which prevents or precludes compli- ance with one or more provisions of this Agreement. Immediately after enactment of any such new Law, or issuance of such Decision, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 7 . 1 above, for KKR42103 11/10/94 Draft Dev. Agreement -2 6- a period of time equal to the length of time the challenge was pursued. If, following such meetings with the City or the failure of any challenge to such new Law or Decision by either the City or Developer, the Developer determines in its sole reasonable business judgement that a modification or suspension of the terms or conditions of this Agreement is infeasible, the Developer shall have the right to terminate this Agreement by giving written notice to the City. Subject to the Reservations of Authority, nothing set forth in this Article 7 shall be construed to permit the City to enact a Law which conflicts with the terms or intent of this Agreement. 8 . DEFAULT AND REMEDIES. 8 . 1 Remedies in General. It is acknowledged by the parties that City would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof, except as otherwise expressly provided herein. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that neither party shall be liable in damages, including, without limitation, attorneys' fees and litigation costs, to the other party, or to any successor in interest of the other party, or to any other person, except as KKR42103 11/10/94 Draft Dev. Agreement -2 7- �rrr' otherwise expressly provided in this Section 8. 1, and each party covenants not to sue for damages or claim any damages: (a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or (b) For the impairment or restriction of any right or interest conveyed or provided under, with, or pursuant to this Agreement; or (c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. Nothing contained herein shall modify or abridge Developer' s rights or remedies (including its rights for damages, if any) resulting from the exercise by City of its power of eminent domain. 8 . 2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate, and specific performance and other non-monetary relief, including temporary and permanent injunctive relief and mandamus, are particularly appropriate remedies for the enforcement of this Agreement and should be available to all Parties for the following reasons: (a) Money damages are unavailable against either party, except as provided in Section 8 . 1 above. (b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Developer may be KKR42103 —2 8— 11/10/94 Draft Dev. Agreement foreclosed from other choices it may have had to utilize the Property or portions thereof. Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Developer for such efforts; the parties acknowledge and agree that any injunctive relief may be ordered on an expedited, priority basis. 8 . 3 Release. Except for nondamage remedies, including the remedy of specific performance and judicial review as provided for in Section 6. 5, Developer, for itself, its successors and assignees, hereby releases the City, its officers, agents and employees from any and all claims, demands, actions, or suits or any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the City because it entered into this Agreement . 8. 4 Termination for Default of Developer. City may terminate this Agreement for any failure of Developer to perform in good faith any material duty or obligation of Developer under this Agreement, or to comply in good faith with the material terms of this Agreement (hereinafter referred to as "default") ; provided, KKR42103 11/10/94 Draft Dev. Agreement -2 9- however, City may terminate this Agreement only after providing written notice to Developer of default setting forth the nature of the default and the actions, if any, required by Developer to cure such default and, where the default can be cured, Developer has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty (60) day . period and to diligently proceed to complete such actions and cure such default. The review and hearing procedures set forth in Section 6 hereof are a condition precedent to the City's ability to terminate this Agreement pursuant to this Section 8 .4 . 8 . 5 Termination of Acreement for Default of City. Developer may terminate this Agreement only in the event of a default by City in the performance of a material term of this Agreement and only after providing written notice to City of default setting forth the nature of the default and the actions, if any, required by City to cure such default and, where the default can be cured, City has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty (60) day period and to diligently proceed to complete such actions and cure such default. KKR42103 11/10/94 Draft Dev. Agreement -3 0- 8. 6 Effect of Termination. Termination of this Agreement by one party due to the other party's default shall not affect any right or duty emanating from any approvals, permits, certificates or other entitlements with respect to the Property or the Project which were issued, approved or provided by the City prior to the date of termination of this Agreement. If City terminates this Agreement because of Developer's default, then City shall retain any and all benefits, including money, land or improvements conveyed to or received by the City prior to the date of termination of this Agreement. If Developer terminates this Agreement because of City' s default or pursuant to Section 8.7 hereof, then Developer shall be entitled to all of the benefits arising out of, or approvals, permits, certificates or other entitlements on account of, any Exactions paid, given or dedicated to, or received by, City prior to the date of termination of this Agreement. Except as provided in this Section 8. 6 or otherwise in this Agreement, all of the rights, duties and obligations of the parties hereunder shall otherwise cease as of the date of the termination of this Agreement. . If this Agreement is terminated pursuant to any provision hereof, then the City shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne by the party causing such action. 8 .7 Effect of Termination of DDIA. No termination of the DDIA shall terminate this Agreement unless the cause for termination of the DDIA is likewise cause for termination of this KKR42103 11/10/94 Draft Dev. Agreement -3 1- Agreement, as provided herein; provided, however, that Developer shall have the right to terminate this Agreement without cost or liability to the City or Developer if the DDIA is terminated. 9. Third Party Litigation. 9. 1 General Plan Litigation. City has determined that this Agreement is consistent with its Comprehensive General Plan, herein called General Plan, and that the General Plan meets all requirements of law. Developer has reviewed the General Plan and concurs with City's determination. Neither the City nor the Developer shall have any liability under this Agreement for any failure of City or Developer to perform under this Agreement or the inability of Developer to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law. 9. 2 [Reserved] 9 . 3 Indemnity. Developer agrees to and shall defend, indemnify and hold the City and the Agency and their respective officers, employees, contractors and agents harmless from and against all liability, loss, damage, costs or expenses (including reasonable attorney's fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or to the property of any person which shall occur directly or indirectly as a result of this KKR42103 11/10/94 Draft Dev. Agreement -3 2- Agreement or any actions taken by Developer pursuant to this Agreement, and which shall be directly or indirectly caused by any negligent or wrongful errors or omissions of the Developer or its agents, servants, employees or contractors with respect to the construction of the Project. The Developer shall not be responsi- ble for, and such indemnity shall not apply to, any acts, errors or omissions (or breach of this Agreement) of the City or the Agency or their respective agents, servants, employees or contractors. 9.4 Environmental Contamination. Developer shall . indemnify and hold City, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of Developer, its officers, agents, employees, subcontrac- tors, and independent contractors, in violation of any federal, state or local law, ordinance or regulation relating to industrial 0 hygiene or to environmental conditions on or under any portion of the Property which may be dedicated or transferred to City by Developer including, but not limited to, soil and groundwater conditions. Developer shall defend, at its sole cost and expense, including attorneys fees and litigation costs, City, its officers, agents, contractors, and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such claim, action or proceeding. 9 . 5 City to Approve Counsel. With respect to Sections 9 .3 and 9 .4 hereof, City reserves the right to either (1) approve the attorney(s) which Developer selects, hires or otherwise engages to defend City hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense; provided, however, that KKR42103 11/10/94 Draft Dev. Agreement -3 3- if City reasonably disapproves any attorney(s) selected by Developer, Developer shall promptly reimburse City for any and all reasonable expenses incurred by City for such defense, including reasonable attorneys' fees, upon billing and accounting therefor. 9. 6 Accept Reasonable Good Faith Settlement. With respect to Sections 9.3 and 9.4 hereof, City shall not reject any reasonable good faith settlement. If City does reject a reasonable, good faith settlement that is acceptable to Developer, Developer may enter into a settlement of the action, as it relates . to Developer, and City shall thereafter defend such action (including appeals) at its own cost and be solely responsible for any judgments rendered in connection with such action. This Section 9. 6 applies exclusively to settlements pertaining to monetary damages or damages which are remedial by the payment of monetary compensation. Developer and City expressly agree that this Section 9. 6 does not apply to any settlement which requires an exercise of the City's police powers, limits the City's exercise of its police powers, or affects the conduct of the City's municipal operations. 9 .7 Survival. The provisions of Sections 9. 1 through 9. 6 inclusive, shall survive the termination or expiration of this Agreement as to matters arising prior to termination or expiration. 10. Mortgagee Protection; Certain Rights of Cure. Nothing contained herein including, but not limited to, Section 11. 2, shall limit Developer, in any manner and at Developer's sole discretion, from encumbering the Project or any portion thereof by one or more KKR42103 11/10/94 Draft Dev. Agreement -3 4- Mortgages or from assigning Developer's rights, title and interests under this Agreement to a Mortgagee or interfere with the lien of or the remedies of a Mortgagee (a "Mortgagee" includes the holder of any Mortgage or any beneficial interest under a Mortgage, or the purchaser at a judicial or nonjudicial foreclosure sale pursuant to the remedies provided in a Mortgage, or any person or entity which acquires title to the Property or any part thereof pursuant to a deed in lieu of foreclosure, or any successor, assignee or transferee thereof) and no breach hereof shall defeat, render • invalid, diminish or impair the lien of any Mortgage. 10. 1 Mortgagee Not Obligated. No Mortgagee shall have an obligation or duty under this Agreement to perform Developer's obligations or duties hereunder or to guarantee the Developer's performance thereof. 10. 2 Notice of Default; Right to Cure. If a Mortgagee files with the City Clerk a written notice requesting a copy of any notice of default given Developer hereunder and specifying the address for delivery thereof, then City shall deliver to such Mortgagee, concurrently with delivery thereof to Developer, any notice given to Developer with respect to any claim of City that Developer has not complied with the terms hereof or is otherwise in default hereunder. The failure of the City to provide such notice, however, shall not impair or defeat the City's exercise of its rights or remedies under this Agreement or otherwise; subject to the rights of a Mortgagee pursuant to this Section 10. Each such Mortgagee shall have the right (but not the obligation) for a period of sixty (60) days after receipt of such notice from City to KKR42103 11/10/94 Draft Dev. Agreement -3 5- cure or remedy, or to commence to cure or remedy, the claim of default or noncompliance set forth in the City's notice. If any such default or noncompliance cannot, with diligence, be remedied or cured within such sixty (60) day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such default or noncompliance if such Mortgagee commences to remedy or cure within such sixty (60) day period, and thereafter diligently pursues and completes such remedy or cure. Notwithstanding the foregoing, if the default or noncompliance is . of a nature which can only be cured by such Mortgagee obtaining possession, such Mortgagee shall be deemed to have remedied or cured such default or noncompliance if such Mortgagee shall, within such sixty (60) day period, commence efforts to obtain possession and carry the same forward with diligence and continuity through implementation of foreclosure, appointment of a receiver or otherwise, and shall thereafter remedy or cure or commence to remedy or cure the default or noncompliance within sixty (60) days after obtaining possession. 10. 3 Bankruptcy. Notwithstanding the provisions of Section 10. 2 above, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof to obtain possession of the Property by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceed- ing involving Developer, the Mortgagee shall for the purposes hereof be deemed to be proceeding with diligence and continuity to obtain possession of the Property during the period of such KKR42103 11/10/94 Draft Dev. Agreement -3 6- prohibition if the Mortgagee is proceeding diligently to terminate such prohibition. 10.4 Estoppel Certificates. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) . the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. City acknowledges that a certificate hereunder may be relied upon by transferees, assignees and lessees of the Developer and any Mortgagee. 11. Transfers and Assignments; Effect of Agreement on Title. 11. 1 Rights and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. 11.2 Transfer. (a) No voluntary or involuntary successor in interest of the Developer shall acquire any rights under this Agreement with respect to the Property or assume, or be deemed to have assumed, any obligations or duties hereunder with respect to KKR42103 11/10/94 Draft Dev. Agreement -3 7- the development of the Property except as expressly set forth herein. (b) Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder, and to assign and transfer any and all of its duties and obligations hereunder, only in accordance with the provisions of this Section 11.2, subject to Section 10 hereof. (c) Prior to the earlier of: (i) The termination of this Agreement or the . expiration of its Term; or (ii) The date that the City is required to issue a certificate of Occupancy for the improvements to be constructed in accordance with the Precise Plan, the Developer's rights and interests hereunder may not be sold, transferred or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the Property to which they relate, including any transfer or assignment pursuant to the granting of any Mortgage, any foreclosure of a Mortgage, or a deed in lieu of such foreclosure; and (ii) At least thirty (30) days prior to any such sale, assignment or transfer of said rights or interests (other than pursuant to the granting of a Mortgage, any foreclosure of a Mortgage, or a deed in lieu of foreclosure) , Developer shall notify City in writing of such sale, transfer or assignment, the portion(s) of the Property to which the sale, assignment or KKR42103 11/10/94 Draft Dev. Agreement -3 8- transfer is appurtenant (if the whole of the Property is not being sold, leased, transferred or assigned) , and the name and address (for purposes of notices hereunder) of the purchaser, transferee or assignee, and the purchaser, transferee or assignee shall provide a written notice to City specifying whether or not the purchaser, transferee or assignee has assumed any of Developer's obligations hereunder and, if so, which such obligations have been assumed. (d) Following any sale, transfer or assignment of any of the rights or interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the terms of this Agreement to the same extent as if the purchaser, transferee or assignee were Developer hereunder. Without limiting the generality of the foregoing, (i) the further sale, transfer or assignment of the rights or interests of the Developer under this Agreement (other than by a Mortgagee) shall be made only in accordance with and subject to the terms of this Agreement, and (ii) the rights and interests of the Developer sold, transferred or assigned shall be subject to termination only in accordance with this Agreement. (e) Developer shall not transfer or assign any of its executory obligations or affirmative covenants with respect to the development of the Property without having first received the written consent of the City, which consent may be given or withheld by the City in the exercise of its reasonable discretion; provided, however, that such consent shall not be required in the event of a delegation or assignment to a Developer Affiliate. A "Developer Affiliate" shall mean a partnership or joint venture in which any KKR42103 11/10/94 Draft Dev. Agreement -3 9- of The Madison Realty Partnership, Limited Partnership ("Madison") , John P. Boorn ("Boorn") , James S. Bennett ("Bennett") , or William Bone ("Bone") is a general partner, or any other entity which is controlled by Madison, Boorn,Bennett or Bone, singly or in any combination. (f) In order to allow City to make an informed decision regarding the consent to an assignment or transfer by Developer of any of its obligations or covenants under this Agreement as described in subsection (e) above, City may reasonably . require the proposed transferee (other than a Developer Affiliate) to submit financial statements and evidence of its fitness, experience and ability (or that of its senior managerial personnel) to comply with the obligations being assumed. Prior to the date of such assignment, the transferee including any Developer Affiliate) 0 shall post cash, surety bonds, letters of credit or other collateral reasonably acceptable to City, if and to the extent any security has been previously provided by Developer to City, to secure the transferee' s performance of its obligations with respect to the portion of the Project being acquired by such transferee. It is understood and agreed that until all of the conditions set forth in this subsection (b) and subsection (e) above have been performed, Developer shall not be relieved of and from liability or responsibility for compliance with the obligations arising under this Agreement with respect to the portion of the Project being transferred. (g) Notwithstanding anything to the contrary contained herein, any permitted transferees or assignees of any of the rights KKR42103 11/10/94 Draft Dev. Agreement -4 0- *40 and interests of Developer in accordance with the provisions of this Section 11.2 shall have no duty or obligation to perform Developer's executory obligations or other affirmative covenants of Developer under this Agreement, unless such executory obligations or affirmative covenants are expressly assumed in connection with the conveyance of such rights and interests. (h) In the event that any permitted transferee or assignee does not assume such executory obligations or affirmative covenants, the Developer shall remain responsible for the complete . and faithful performance of those obligations and affirmative covenants. In the event that Developer fails to perform such obligations or affirmative covenants in accordance with the provisions of this Agreement, then the failure of the Developer to so perform shall constitute an event of default hereunder with respect to any portion of the Property acquired by any transferee or assignee and to any portion of the Property retained by Developer. In such event, the City may commence termination proceedings pursuant to Section 6 and 8.4 of this Agreement with respect to anyportion of the Property acquired by any transferee or assignee and to any portion of the Property retained by Developer. (i) In the event such executory obligations or affirmative covenants with respect to any portion of the Property acquired by any permitted transferee or assignee are assumed by such permitted transferee or assignee, no subsequent failure by such transferee or assignee (or any subsequent transferee or assignee) to perform or comply with such executory obligations or affirmative covenants shall be deemed an event of default by the KKR42103 11/10/94 Draft Dev. Agreement -4 1- low Developer hereunder. Similarly, no failure of the Developer to perform or comply with its executory obligations or affirmative covenants which have not been so transferred or assigned shallconstitute an event of default hereunder with respect to such transferee or assignee (or subsequent transferee or assignee) . (j) The provisions of subsections (e) , (f) and (h) of this Section 11.2 shall not apply to the following: (i) Any Mortgage or Mortgagee. (ii) The sale, ground leasing or transfer of any portion of the Property to any purchaser, transferee or tenant occupying at least 15, 000 square feet of gross leasable area in the Project ("Major") , provided such Major is an experienced retailer which generally acquires sites in retail centers for the purposes of erecting, constructing, maintaining and operating (or causing to be erected, constructed, maintained and operated) retail stores, and provided further that such Major' s use or proposed use of the Property or the improvements thereon is the consistent with the Precise Plan approved by the City pursuant to this Agreement. (iii) The conveyance or dedication of any portion of the Property to the City, Agency or other appropriate governmental agency, or the granting of easements or permits to facilitate the development of the Property. (iv) The leasing of space for occupancy in the Project. (v) The sale, ground leasing or leasing of any portion of the Property and improvements thereon for development pads permitted by the Precise Plan approved by the City. KKR42103 11/10/94 Draft Dev. Agreement -4 2- *410 It is understood and agreed that the exceptions provided in subparagraphs (ii) and (v) above shall apply only if the aggregate amount of all prior sales, ground leases or transfers of any portion of the Property is less than 1/3 of the total gross leasable area constructed or to be constructed in the Project . (k) Provided that all conditions of this Section 11.2 have been satisfied, the City shall take all actions reasonably necessary to accomplish the sale, transfer, assignment, conveyance or delegation of such rights and interests and such . duties and obligations as permitted pursuant to this Section 11.2, including, but not limited to, the execution by the City of such instruments or documents as the Developer may reasonably request to evidence the release of the Developer from any such duties or obligations; provided, however, that the City shall not be required to so act if it reasonably believes that to do so would materially impair its rights or obligations under this Agreement. 11. 3 Termination of Agreement with Respect to Property. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any portion of the Property with respect to which a final subdivision map or parcel map conforming to the terms and provisions of this Agreement has been recorded, and thereupon, and without the execution or recordation of any further document or instrument, such portion of the Property shall be released from and shall no longer be subject to or burdened by the provisions of this Agreement; provided, however, that (i) the foregoing shall not be construed to release Developer from any then unperformed obligations under this KKR42103 11/10/94 Draft Dev. Agreement -4 3- Agreement with respect to such portion of the Property, and (ii) the benefits of this Agreement shall continue to run as to such portion of the Property until such time as such portion of the Property is developed and the benefits of this Agreement with respect thereto are fully utilized by the construction of a building or buildings or other improvements thereon. Upon receipt of written request therefor and subject to the provisions of Section 11. 2 hereof and this Section 11. 3 , the City shall promptly provide to the Developer, or any transferee or assignee of an interest of the Developer in the Property, a written statement confirming the release of any portion of the Property from the burdens of this Agreement or the termination of this Agreement with respect to such portion of the Property, which statement shall be in form appropriate for recording in the 0 official records of Riverside County and shall impart constructive record notice of such release or termination. 11. 4 Covenants Run with Land. Subject to the foregoing provisions of this Section 11 and Section 10 hereof: (i) All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, lessees, and all other persons acquiring any rights or interests in the Property, or any portion thereof, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit of the parties and their respective KKR42103 11/10/94 Draft Dev. Agreement -4 4- *400 heirs, successors (by merger, consolidation or otherwise) and assigns; (ii) All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law; (iii) Each covenant to door refrain from doing some act on the Property hereunder (A) is for the benefit of and is a burden upon every portion of the Property, (B) runs with such lands, and (C) is binding upon each party and each successive owner ► during its ownership of the Property or any portions thereof, and shall benefit each party and its lands hereunder, and each such other person or entity succeeding to an interest in such lands. Notwithstanding any of the foregoing or anything to the contrary contained in this Agreement, any transferee or assignee or Mortgagee which acquires any right or interest in or with respect to the Property or any portion thereof shall take and hold such rights and interests subject to this Agreement and shall not have been deemed to have assumed any obligations or duties of the Developer hereunder except to the extent that any such transferees or assignees or Mortgagees have expressly assumed in writing any of the duties or obligations of the Developer hereunder. 12 . Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: KKR42103 _4 rJ 11/10/94 Draft Dev. Agreement If to City: City Clerk of the City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 If to Developer: The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. John P. Boorn with a copy to: The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. James S. Bennett with a copy to: Pircher, Nichols & Meeks 1999 Avenue of the Stars, Suite 2600 Los Angeles, California 90067-6077 Attention: PN&M Notices (SAH) Either party may change its mailing address at any time by giving written notice of such change to the other party in the manner provided herein. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 13 . Miscellaneous. 13 . 1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that KKR42103 11/10/94 Draft Dev. Agreement -4 6- none of the terms or provisions of this Agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 13 . 2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise specified in this Agreement or otherwise required by law for a specific time period, consent shall be deemed given within thirty (30) days after receipt of the written request for consent, and if a party shall neither approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this Agreement or otherwise required by law for consent, that party shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor shall be stated in reasonable detail in writing. This Section 13 .2 does not apply to Development Approvals. 13 . 3 Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. Except for any portion of the Property which has been conveyed to the City by Developer as provided in this Agreement or the DDIA, Developer KKR42103 11/10/94 Draft Dev. Agreement -4 7- shall have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas and buildings and improvements located thereon, by any person for any purpose inimical to the development or operation of the Project as contemplated by this Agreement. Any portion of the Property conveyed to the City by Developer as provided herein shall be held and used by the City only for the purposes contemplated herein or otherwise provided in such conveyance, and City shall not take or permit to be taken (if within the power or authority of the . City) any action or activity with respect to such portion of the Property that would deprive the Developer of the material benefits of this Agreement or would materially and unreasonably interfere with the development of the Project as contemplated by this Agreement. 13 .4 Severability. If any term, provision covenant or condition of this Agreement shall be determined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. 13 . 5 Exhibits. The Exhibits listed in the Table of Contents, to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 13 . 6 Entire Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire KKR42103 11/10/94 Draft Dev. Agreement -4 8- agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto. 13 .7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of *the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the O' Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and + shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or. neuter genders, or vice versa. 13 .8 Signature Pages. For convenience, the signatures of the parties to this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. 13 .9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. KKR42103 _4 9_ 11/10/94 Draft Dev. Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above-written. DEVELOPER: THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership By: The Boorn Bennett Limited Partnership, an Ohio limited partnership, its general partner By: Boorn, Inc. , an Ohio corporation, its general partner By: John P. Boorn President CITY: THE CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California By: Mayor Attest: City Clerk KKR42103 11/10/94 Draft Dev. Agreement -5 0- *400 Y STATE OF CALIFORNIA) ss. COUNTY OF ) On before me, the undersigned, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/ her/their signatures) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. KKR42103 11/10/94 Draft Dev. Agreement -5 1- STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On before me, the undersigned, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. i KKR42103 11/10/94 Draft Dev. Agreement -5 2- EXHIBIT "A" PALM DESERT PROJECT DEVELOPMENT STANDARDS FOR THE PROJECT I. Purpose of Development Standards II. Project Introduction A. Overview and Location B. Project Statistical Summary III. General Notes and Conditions IV. General Development of Project A. Proposed Uses B. Building Square Footage Limits and Maximum Heights C. Density and Intensity of Use D. Open Space V. Planning Guidelines A. Purpose B. Site Planning and Circulation C. Grading/Drainage/Street Standards D. Landscaping, Walls and Lighting E. Design Concept of Buildings/Parking/ Loading Area F. Utility Services and Structures G. Project and Business Identification VI. Plan Review Requirements A. Purpose B. Development/Precise Plan Review C. Development/Precise Plan Contents KKR42103 11/10/94 Draft Dev. Agreement -1 �iw✓ The Developer shall be entitled to develop the Property to the maximum building site coverage percentage provided in the applicable Existing Land Use Ordinance as it pertains to the Property. The Precise Plan shall depict the eligible building areas within the Property. Buildings shall be reasonably distributed within the Property to permit ease of vehicular and pedestrian access, circulation and egress and for proper operational building service requirements. V. Planning Guidelines A. Purpose Except as otherwise provided in the Agreement or this Exhibit "A" , the development of the Property shall be subject to and controlled by the design and development guidelines established by the Existing Land Use Ordinances and the Building Ordinances. The following guidelines are intended to be supplemental to those established by the Existing Land Use Ordinances and the Building Ordinances and to the extent they are inconsistent or in conflict with the guidelines established by the Existing Land Use Ordinances and the Building 0 Ordinances, these guidelines shall be deemed controlling. Subject to the foregoing, all development plans for the Property shall comply with the following guidelines. B. Site Planning and Circulation Interior vehicular circulation shall be patterned to permit ease of ingress and egress as well as the distribution of buildings in relation to parking areas to allow for the dispersion of vehicles and pedestrians throughout the Property. The Project shall have clearly defined pedestrian routes into and throughout the Property in order to minimize potential points of conflict between pedestrians and vehicles. Individual entries shall occur at the designated locations on the Precise Plan. Building setbacks shall be as depicted on the Precise Plan. C. Grading/Drainage KKR42103 _7_ 11/10/94 Draft Dev. Agreement 400 11. Prior to the issuance of any building permit with respect to the Project, a Precise Plan for the development of the Project shall be submitted to the Planning Commission and shall be approved by the Planning Commission if such Precise Plan is consistent with and complies with the provisions of the Agreement. 12 . The Developer shall be permitted to establish a Project office on the Property upon execution of the Agreement by the City. 13 . Sizing of all backbone utility facilities shall be predicated on the maximum density proposed for the Project and shall not be required to be oversized to accommodate uses other than with respect to the Project. 14 . Unless otherwise provided in the Precise Plan, all improvements required as Exactions pursuant to the attached Exhibit "D" shall be constructed by Developer as and when such improvements are necessary with respect to Project development, as determined by the City. IV. General Development of the Project A. Proposed Uses Any or all uses permitted in the C-1 zone of the Existing Land Use Ordinances. B. Maximum Building Square Footage Limits and Maximum Heights Maximum S. F. 167, 000 (subject to increase as set forth in paragraph IIIBS) . Height Limit Per applicable Existing Land Use Ordinances C. Density and Intensity of Use KKR42103 11/10/94 Draft Dev. Agreement -6- NNW#, Agreement for the properties affected thereby (or otherwise obtained from the City by the developers of such properties in the course of their development) . 6. Development of the Property may accommodate all uses permitted in the C-1 zone as identified in the Existing Land Use Ordinances. 7. Parking requirements for layouts and sizes for the Project shall. be based upon the requirements for general retail and office use as described in the Existing Land Use Ordinances. Parking requirements, including ratios, shall be based upon the less stringent of the following: (a) the requirements for general retail and office use as described in the Existing Land Use Ordinances, or (b) four spaces per 1, 000 square feet of gross leasable area. Notwithstanding anything to the contrary set forth in paragraph IIIB6 or this paragraph IIIB7 or in the Existing Land Use Ordinances, up to 25% of the total gross leasable area may be developed as restaurant space with no additional parking requirements. 8. Changes in the location or configuration of the buildable zones within the Project may occur as specific site plans are developed. Any such changes will be subject to the prior approval of the Community Development Director of the City. 9. Tentative Tract Maps may be filed and approved subject to consistency with the Precise Plan. 10. Except as otherwise provided herein, all approvals of the City, the Community Development Director, or the Planning Commission of the City required as provided herein shall be based upon the criteria and standards for such approval set forth in the Existing Land Use Ordinances and the Building Ordinances. KKR42103 11/10/94 Draft Dev. Agreement -5- governed by, the Existing Land Use Ordinances. 3 . Except as otherwise provided in this Exhibit "A" and in the Agreement, all construction of improvements upon the Property shall conform to the building and construction standards established by the building ordinances. 4 . Whenever the provisions of this Exhibit "A" conflict with the provisions of the Existing Land Use Ordinances or the Building Ordinances the provisions of this Exhibit "A" shall be deemed to control to the extent necessary to effectuate the purposes and intent of the Agreement. 5. The maximum aggregate allowable building square footage for the Project shall be 167, 000 s.f. of gross leasable area; provided, however, that the Project may include up to an additional 30, 000 square feet of gross leasable area if a lease or other occupancy agreement is entered into with any of the following for the construction of a retail store in the Project: (a) Saks Fifth Avenue, (b) one i (1) or more retailers which are similar to Saks Fifth Avenue (in which event City shall have the right to decide, in its reasonable discretion, whether or not each such retailer proposed by Developer is similar to Saks Fifth Avenue) , or (c) one (1) or more retailers which are not similar to Saks Fifth Avenue (in which event City shall have the right to approve each such retailer in its sole discretion) . The failure of City to respond to a request for approval of a retailer pursuant to clause (b) or (c) of the immediately preceding sentence within twenty (20) days after Developer's request shall be deemed approval of such retailer. The City covenants and agrees that the amendments to the Development Agreement set forth in this paragraph 5 relating to the permitted size of the Project shall not result in a reduction of the maximum aggregate allowable building square footage provided in the Development KKR42103 11/10/94 Draft Dev. Agreement -4- 1. It maximizes the potential for high quality economic development of the Commercial Core Area. 2. It addresses specific policy recommendations of the Palm Desert Commercial Core Area Specific Plan. 3. It provides for the completion of all necessary signalization and pedestrian amenities for E1 Paseo, Shadow Mountain Drive, Larkspur Lane and San Pablo Avenue in the vicinity of the Project, as provided for in Exhibit "D" . B. Project Statistical Summary Common Name: Sun Lodge Colony Location: SWC El Paseo and Larkspur Lane Acreage: 10. 3 acres Site Topography: generally flat with slight slope up to the south. III. General Notes A. Purpose This section III is included to: (i) provide certain definitions for use with respect to this Exhibit "A"; (ii) to describe the relationship of this Exhibit "A" to the Existing Land Use Ordinances and the Building Ordinances; and (iii) provide other . miscellaneous provisions necessary to effectuate the purposes and intent of the Agreement. B. General Notes 1. Terms contained in this Exhibit "A" shall have the same meaning as defined in the Agreement unless otherwise defined herein. 2 . Except as otherwise provided in this Exhibit "A" and in the Agreement, the development of the Project shall be in accordance with, and the development of the Project during the Term shall be KKR42103 11/10/94 Draft Dev. Agreement -3- I. Purpose of Development Standards The purpose of the development standards for the Project is to: 1. Provide the Developer with a planning and development process which will result in a Project that is consistent with the City's General Plan and in furtherance of the goals of the City as set forth in the Agreement. 2. Provide supplemental criteria for the use, design, density, circulation and development of the Project (as described in II.B hereof) that will result in an aesthetically pleasing, environmentally harmonious and commercially viable product that expands the goods and services presently available to the community. • 3 . Ensure that development occurs in an orderly fashion through long-range planning. 4 . Encourage development that is operationally functional to both the building operator and the consumer. 5. Provide for the development of the Project in a manner which is consistent with the terms and provisions of the Agreement and the Existing Land Use Ordinances. II. Project Introduction A. Overview The Project presents an opportunity to master plan one of the remaining large vacant properties within the area of the City subject to the City's Commercial Core Area Specific Plan. The development of the Project in accordance with the provisions of the Agreement and these development standards furthers the development objectives of the City in an orderly manner. The development of the Project in accordance with the provisions of the Agreement and the development standards provides a number of benefits: KKR42103 11/10/94 Draft Dev. Agreement -2- Grading design shall reinforce the architectural and landscape designs in the following ways: A. Assist in screening parking, loading and service areas. B. Reduce the perception of height and mass of large buildings. C. Provide a reasonable transition from the street to the Property. The applicant may obtain permits for rough grading after approval of conceptual grading plans by the Director of Public Works and the Director of Community Development. Grading shall be permitted outside of an area of immediate development if consistent with the conceptual grading plan. Drainage of surface parking areas and roof areas shall terminate at an underground storm drain system in the public streets. Points of connection will be provided for the Property. D. Landscaping i Landscape materials shall enhance the major architectural design elements through the coordinated use of indigenous and introduced plant species, lighting, massing, etc. Landscaping shall be in accordance with a landscape concept plan as provided in the Existing Land Use Ordinances. The landscape concept plan will be submitted as part of the Precise Plan at the time development of the Property is proposed. The landscape framework will be compatible with the desert environment. E. Design Concept of Buildings/Parking/Loading Areas The architecture of the Project shall possess an underlying compatibility among the various buildings through the use of similar materials, finishes, colors and amenities while allowing a degree of flexibility for expression and KKR42103 11/10/94 Draft Dev. Agreement -8- identity. All building designs shall be aesthetically agreeable with the desert environment. The Property shall provide 200 parking spaces in addition to the number of parking spaces otherwise required by paragraph IIIB7. Loading docks, service delivery areas, where provided, are required to be screened, recessed, and/or enclosed so as not to be visible from adjacent streets and properties. Loading, service and delivery areas shall not encroach into any setback areas. F. Utilities and Utility Structures Public services and utilities will be provided by the following public/private agencies unless otherwise approved by the Director of Community Development: a. Water - Coachella Valley Water District b. Sewer - Coachella Valley Water District C. Flood Control - Coachella Valley Water District d. Electricity - Southern California Edison 0 Company e. Natural Gas - Southern California Gas Company f. Telephone - General Telephone Company g. Schools - Palm Springs and Desert Sands Unified School District h. Public Parks - Coachella Recreation and Parks District is Fire Protection - Riverside County Sheriff Department j . Police Protection - Riverside County Sheriff Department k. Solid Waste Disposal - Riverside County Road Department and Palm Desert Disposal Services 1. Television - Coachella Valley Television All utilities shall be installed and maintained underground. Utility design shall not place excessive burdens upon offsite systems. KKR42103 11/10/94 Draft Dev. Agreement Temporary overhead power and telephone facilities are permitted during construction only. Any device for transmission or reception of communication signals shall be screened. Rooftop devices shall not extend above the building's highest architectural element or be visible within a horizontal line of sight. Ground-mounted devices shall be screened from view from adjacent streets and property. Outdoor trash areas shall be visually screened by a 6-ft.-high (minimum) , non combustible enclosure constructed of the same materials and finishes as the adjacent building. Enclosures shall be designed and located so as not to be highly visible from adjacent streets and property. G. Project and Business Identification Project entry statements composed of signage, landscaping, architectural features, or a combination of same, will be depicted on the landscape concept plan. i VI. Plan Review Requirements A. Purpose This section is established to ensure that the overall purpose and intent of the Project is satisfied and implemented in an orderly manner. B. Development/Precise Plan Review When the actual development of the Property is proposed, an application for approval of a Precise Plan shall be filed with and such Precise Plan shall be approved by the Planning Commission if it is consistent with the Precise Plan and complies with the provisions of this Agreement and this Exhibit "A" . C. Precise Plan Contents Subject to the provisions of the Agreement and this Exhibit A, the Precise Plan shall comply KKR42103 11/10/94 Draft Dev. Agreement -1 O- with the requirements of Section 25.73.011 of the Existing Land Use Ordinances. KKR42103 -11- 11/10/94 Draft Dev. Agreement EXHIBIT "B" THE PROPERTY THE FOLLOWING REAL PROPERTY IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: The following legal description encompasses the entirety of the Property on the Precise Plan. Parcels 1 and 2 of Parcel Map 4655, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 7, Page 42 of Parcel Maps, in the Office of the County Recorder of said County. KKR42103 11/10/94 Draft Dev. Agreement -1- EXHIBIT "C" PHASING SCHEDULE Phase Entitlement/Maximum Rate Development Activity I. Execution of Agreement Developer may obtain all Agreement authorized, necessary approvals , executed and delivered consents, permits,- or other. to Developer by City of entitlement for the Palm Desert construction and occupancy of not less than 100, 000 square feet of gross floor area within the Property and not more than that permitted by paragraph IIIB5 of Exhibit A. KKR42103 11/10/94 Draft Dev. Agreement '1- EXHIBIT "D" EXACTIONS As provided in the Agreement, the following constitutes those Exactions which may be imposed by the City with respect to the development of the Project. The following Exactions include all of the mitigation measures with respect to the Project for which the Developer will be responsible for satisfying and which were identified in the Environmental Impact Report (the "EIR") pertaining to the Project and certified as complete by the City on November 16, 1989 . Unless otherwise provided for in this Exhibit "D" , all Exactions shall be constructed or provided by the Developer in conformance with the requirements of the Existing Land Use Ordinances. Those Exactions identified herein, while intended to be specific in nature, will remain subject to specific Project review as provided in Exhibit "A" . The City and the Developer will in good faith attempt to agree as to any modifications of the following Exactions which are requested by the City as a result of such specific Project review. 1. Street Improvements All street improvements are subject to the review and approval of construction documents pertaining thereto by the City of Palm Desert Department of Public Works. All of the following street improvements are to be located adjacent to the Project. A. South side of E1 Paseo between San Pablo Avenue and Larkspur Lane -- completion of all pedestrian amenities including street lighting, landscaping, bus stations, sidewalks, benches, and decorations. B. West side of Larkspur Lane between E1 Paseo and Shadow Mountain Drive -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks. C. East side of San Pablo Avenue between E1 Paseo and Shadow Mountain Drive -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks. KKR42103 11/10/94 Draft Dev. Agreement -1 D. North side of Shadow Mountain Drive between Larkspur Lane and San Pablo Avenue -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks. 2. Traffic Signals All of the following traffic signal improvements and signal modifications are to be located adjacent to the Project. As used in this Paragraph 2, the "related improvements" shall mean those improvements identified by the City of Palm Desert Department of Public Works as necessary to implement the traffic signal modifications to which they relate. A. New traffic signal and related • improvements at the intersection of E1 Paseo and Larkspur Lane, all as required by the EIR. B. Traffic signal modifications and related improvements at El Paseo and San Pablo Avenue, all as required by the EIR. 3 . Storm Drains A. Construction of all necessary drainage systems with respect to the Project and the facilities necessary to connect such systems to the existing underground storm drain systems in the public streets, all as required by the EIR. 4 . Transit A. Construction of bus turnouts and shelters for the Project, all as required by the EIR. B. Provide a Transportation Demand Management Study as required by the EIR. 5. Parking In conjunction with the construction of the private commercial/retail facilities to be located on the Property (if constructed) , the Developer shall provide 200 additional parking KKR42103 11/10/94 Draft Dev. Agreement -2- spaces above project parking requirements for the Property as required by paragraph IIIB7 of Exhibit A. Prior to the commencement of construction of the commercial/retail facilities to be located on the Property, the Developer and the Agency shall have in good faith negotiated and entered into the Parking Management Agreement described in Section 5. 1 of the DDIA. It is the intent of the Developer and the City that, subject to the provisions of the DDIA pertaining to the payment by the Agency to the Developer of the Purchase Price for the Parking Rights, the Developer will pay all costs of constructing such parking spaces. 6. Housing The Developer will pay a housing mitigation fee for the Project at the time of building permit issuance with respect thereto. The proceeds of such fees shall be used by the City, along with other revenues of the City, to address the very low, low and moderate income housing needs generated by the development of the Project consistent with the housing programs identified or to be identified in the housing element of the City's General Plan. Such fee shall be in the amount of $1. 00 per square foot of building floor space for mixed commercial/retail development and $. 50 per square foot of building floor space for professional office development. This fee shall be payable by the Developer only if a similar fee equal to or greater than this fee will be required by the City with respect to all other commercial .development within the City. In no event and under no circumstances will such fee exceed $197, 500. 7 . Fees A. T.U.M.F. Fees B. Signalization Fee C. Drainage Fees D. Art in Public Places Fees, which fees shall be one half of one percent ( . 5%) of the total building valuation (valuation for building permit purposes) , with no maximum limit. KKR42103 11/10/94 Draft Dev. Agreement -3- E. The usual and customary fees of general application charged for processing of applications for permits and approvals pertaining to the development of the Project. KKR42103 11/10/94 Draft Dev. Agreement -4- EXHIBIT "E" [Reserved] KKR42103 11/10/94 Draft Dev. Agreement -1- *00 EXHIBIT "F" DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT (to be inserted) i KKR42103 11/10/94 Draft Dev. Agreement -1- a 4+ ------------------------------------------------------------ (Space Above for Recorder's Use Only) • AMENDED AND RESTATED DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT between THE CITY OF PALM DESERT, CALIFORNIA and THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP Dated: , 1994 KKR42074 11-09-94 DRAFT DDIA TABLE OF CONTENTS Page(s) RECITALS . . . . . . . . . . . . . . . . . . . . . . . 1 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . 4 1. 1 Defined Terms . . . . . . . . . . . . . . . . . . 4 1.2 Mortgage . . . . . . . . . . . . . . . . . . . . . 4 1. 3 Mortgagee . . . . . . . . . . . . . . . . . . . . 5 1.4 Minimum Improvements . . . . . . . . . . . . . . . 5 1.5 Certain Other Terms . . . . . . . . . . . . . . . 6 2. EFFECTIVE DATE; TERM; ASSIGNMENT . . • . . . . • . 6 2. 1 Effective Date . . . . . . . . . . . . . . . . . . 6 2 . 2 Term . . . . . . . . . . . . . . . . . . . . . 7 3 . GENERAL DEVELOPMENT OF THE PROPERTY; AGENCY FINDINGS AND ACTIONS . . . . . . . . . . . 7 3 . 1 Agency Findings . .. . . . . . . . . . . . . . . . 8 4 . CONSTRUCTION OF MINIMUM IMPROVEMENTS AND USE OF THE PROPERTY . . . . . . . . . . 10 4 . 1 Agreement to Construct. Minimum Improvements . . . 10 4 . 2 Cost of Construction; Reporting to Agency . . . . 11 4 . 3 (Reserved] . . . . . . . . . . . . . . . . . . . . 12 4 .4 [Reserved] . . . . . . . . . . . . . . . . . . . . 12 4 . 5 Indemnification During Construction: Bodily Injury and Property Damage Insurance . . . 12 4 . 6 Antidiscrimination During Construction . . . . . . 14 4 .7 Local, State, and Federal Laws . . . . . . . . . . 14 4 .8 City and Other Governmental Agency Permits . . . . 15 4 .9 Rights of Access . . . . . . . . . . . . . . . . . 16 4 . 10 Prohibition Against Transfer . . . . . . . . . . . 16 4 . 11 [Reserved] . . . . . . . . . . . . . . . . . . . . . 19 4 . 12 Minimum Improvement Certificate of Compliance . . 19 4 . 13 Uses . . . . . . . . . . . . . . . . . . . . . . . 21 4 . 14 (Reserved] . . . . . . . . . . . . . . . . . . . 21 4 . 15 Obligation to Refrain from Discrimination 22 4 . 16 Form of Nondiscrimination and Nonsegregation Clauses . . . . . . . . . . . . . . . . . . . . . 22 4 . 17 Incorporation of Easement Agreement Covenants and Obligations . . . . . . . . . . . . 25 5. ACQUISITION OF PARKING RIGHTS. . . . . . . . . . . 25 5. 1 Parking Rights . . . . . . . . . . . . . . . . . . 25 5. 2 The Purchase Price . . . . . . . . 5. 3 Damages and Remedies for Developer' s Default 28 5.4 Escrow . . . . . . . . . 29 5. 5 Conveyance of Easement Title . . . . . . . . . . . 35 KKR42074 11-09-94 DRAFT DDIA -1- 5.6 Form of Easement . . . . . . . . . . . . . . . . . 36 5.7 Conditions for Close of Escrow . . . . . . . . . . 36 5.8 Time and Place for Delivery of Documents to Escrow 39 5.9 Taxes and Assessments . . . . . . . . . . . . . . 39 5. 10 Delivery of Documents . . . . . . . . . . . . . . 39 6. DURATION OF COVENANTS; DEFAULTS, REMEDIES AND TERMINATION . . . . . . . . . . . . 6. 1 Effect and Duration of Covenants and Agreements 39 6.2 Defaults . . . . . . . . . . . . . . . . . . . . . 40 6.3 Institution of Legal Actions . . . . . . . . . . . 41 6.4 Applicable Law . . . . . . . . . . . . . . . . . . 42 6. 5 Acceptance of Service of Process . . . . . . . . . 42 6. 6 Rights and Remedies are Cumulative . . . . . . . . 43 6.7 Notice and Opportunity to Cure Default . . . . . . 43 6. 8 Failure of Easement Purchase Transaction to Close 44 6. 9 Excuse of Performance . . . . . . . . . . . . . . 45 6. 10 Effect of Termination of Development Agreement 45 6. 11 Termination if Development Agreement Expires or is Terminated . . . . . . . . . . . . . 45 7 . GENERAL PROVISIONS . . . . . . . . . . . . . . . . 45 7 . 1 Notices, Demands, and Communications Between the Parties . . . . . . . . . . . . . . . 46 7. 2 Conflicts of Interest . . . . . . . . . . 47 7. 3 Nonliability of Agency Officials and Employees 47 7 .4 Enforced Delay; Extensions of Time of Performance 48 7 . 5 Replacement of Existing Businesses . . . . . . . . 49 8 . ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS . . . . . 52 9 . MISCELLANEOUS . . . . . . . . . . . . . . . . . . 52 10. ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . 54 11. AGREEMENT TO COOPERATE . . . . . . . . . . . . . . 54 12 . MORTGAGEE PROTECTION . . . . . . . . . . . . . . . 55 12 . 1 Mortgagee Protection; Certain Rights of Cure . . . 55 12 .2 Security Financing; Mortgagee Not Obligated to Construct . . . . . . . . . . . . . . 55 , 12 . 3 Notice of Default; Right to Cure . . . . . . . . . 58 12 .4 Bankruptcy . . . . . . . . . . . . . . . . . . . . 59 13 . TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY; DATE OF AGREEMENT . . . . . . . . . . . . . . . . 60 14 . AGREEMENT MAY BE EXECUTED IN COUNTERPARTS . . . . 61 KKR42074 11-09-94 DRAFT DDIA -i i- LIST OF EXHIBITS Exhibit Designation Description A Redevelopment Plan B The Property c Development Agreement D [Reserved] E Easement Agreement i KKR42074 11-09-94 DRAFT DDIA -111- AMENDED AND RESTATED DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT THIS AMENDED AND RESTATED DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT (hereinafter referred to as the "Agreement") is entered into on , 1994, by and between THE PALM DESERT REDEVELOPMENT AGENCY (the "Agency") and THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership, and its successors and assigns (the "Developer") . The Agency and the Developer agree as follows: RECITALS This Agreement is entered into on the basis of the following facts, understanding and intentions of the Parties: 0 A. Health and Safety Code Sections 33000, et. sea. , (the "Redevelopment Legislation") authorize the Agency to enter into agreements with property owners and the purchasers of property for the purpose of furthering the development of property within a project area in conformity with the development conditions set forth in the redevelopment plan pertaining to such project area, and provide for the Agency' s participation in such development, including, but not limited to, the construction of public improvements related thereto and the manner of the payment of the costs thereof, and the acquisition by the Agency of real property and real property interests necessary for such development. KKR42074 _ 11-09-94 DRAFT DDIA -2 B. The Agency has heretofore prepared and approved the redevelopment plan attached hereto as Exhibit A (the "Redevelopment Plan") for its Project Area No. 1 (the "Project Area") , which Project Area encompasses the real property described in Exhibit B attached hereto (the "Property") to be developed pursuant to this Agreement and the Development Agreement (as hereinafter defined) . C. The City of Palm Desert (the "City") and the Developer have entered into that certain Amended and Restated Development Agreement dated October , 1994 (as said agreement . may hereafter be amended, the "Development Agreement") , which Development Agreement is attached hereto as Exhibit C and relates to and benefits the Property, and by which the City has acknowledged that the development of the Property as set forth therein and herein is consistent with and in furtherance of the 0 development goals and policies of the City. D. ACD2 , a California corporation (as the successor in interest to Ahmanson Commercial Development Company) and the Agency have previously entered into that certain Disposition, Development and Implementation Agreement dated May 4 , 1990, as amended and restated by that certain Amended and Restated Disposition, Development and Implementation Agreement dated December 30, 1993 (collectively, the "DDIA") , by which the Agency made certain findings and agreed to certain procedures and such findings and procedures relate in part to and are of benefit to the Property. As of the Effective Date (as hereinafter defined) , the terms and conditions of the DDIA which are not included in this Agreement KKR42074 11-09-94 DRAFT DDIA -3- shall have no force or effect upon, and shall not be binding upon, Developer or the Property; provided, however, that in any event the DDIA shall remain in full force and effect with respect to all properties, other than the Property, which are subject thereto. E. Pursuant to that certain Option Agreement and Joint Escrow Instructions (as heretofore and hereafter amended, the "Purchase Agreement") between Developer, as buyer, and ACD2 , as seller, dated May 20, 1994 , Developer agreed to purchase the Property from ACD2 , and also agreed to assume and accept all of the . obligations, duties, rights and interests which relate to the Property under the DDIA, as such obligations, duties, rights and interests are hereinafter set forth in this Agreement. F. The Agency has determined that the development of the Property in the manner provided herein and in the Development i Agreement is in conformance with and in furtherance of the Redevelopment Plan. G. The development of the Property in the manner described herein and in the Development Agreement will require a major investment by the Developer, and the Agency has determined that the public benefits to be derived from such development justify the Agency entering into this Agreement with respect to such development. H. The Agency has found and determined that the development and construction of the Minimum Improvements (defined in Section 1.4 hereof) and the Agency' s purchase of the Parking Rights (defined in Section 5. 1 hereof) are of benefit to the entire KKR42074 _ 11-09-94 DRAFT DDIA -4 Project Area and are consistent with the purposes of and authorized by the Redevelopment Plan and the Redevelopment Legislation. I. In order to effectuate the foregoing, the parties desire to enter into this Agreement in order to amend and restate in its entirety the DDIA with respect to the Property. NOW, THEREFORE, pursuant to the authority contained in the Redevelopment Legislation and the Redevelopment Plan, and in consideration of the mutual covenants and promises herein contained, the parties agree as follows: 1. DEFINITIONS. 1. 1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below i for each such term. 1. 2 Mortgage. Any mortgage, deed of trust, sale and leaseback or other form of conveyance or encumbrance for financing for the purpose of securing loans of funds to be used for financing the direct and indirect costs (including, without limitation, financing costs, interest and commissions, and the refinancing of any equity investment by Developer) of acquiring, designing, constructing, developing, leasing and operating the Property or the improvements to be constructed thereon, or any portion thereof, pursuant to this Agreement, including any collateral assignment of this Agreement to a Mortgagee (as hereinafter defined) . As used herein, "Mortgage" includes all commercially reasonable modes of KKR42074 11-09-94 DRAFT DD1A -5- financing real estate acquisition, construction, or land development. 1. 3 Mortgagee. The holder of any Mortgage or any beneficial interest under a Mortgage, or the purchaser at a judicial or non-judicial foreclosure sale pursuant to the remedies provided in a Mortgage, or any person or entity that acquires title to the Property or any part thereof pursuant to a deed in lieu of foreclosure, or any successor , assignee or transferee thereof. 1. 4 Minimum Improvements. Minimum Improvements shall mean those certain improvements located on the Property and described as follows: (a) The construction of no less than 100, 000 square feet of core and shell improvements (excluding tenant improvements) of the gross leasable area of the commercial/retail development 0 described in Exhibit A to the Development Agreement, as such development is further refined, enhanced or modified pursuant to the Development Agreement. At least 30, 000 square feet of said 100, 000 square feet of gross leasable area shall, when occupied, be occupied by: (i) a single lessee; or (ii) a combination of lessees, each occupying no less than 5, 000 square feet of gross leasable area. Notwithstanding the foregoing, such occupancy shall not be required as a condition to the emistenee—completion, of the Minimum Improvements or the issuance of a Minimum Improvement Certificate of Compliance (as defined in Section 4 . 12) with respect thereto. KKR42074 11-09-94 DRAFT DDIA -6 (b) The construction of the private parking facilities on the Property, as described in Exhibit A of the Development Agreement. The parking facilities shall contain, at a minimum, the amount of parking spaces required by Sections III.B. (7) and V.E of Exhibit A to the Development Agreement. 1.5 Certain Other Terms. Certain other terms shall have the meanings set forth for such terms in this Agreement. 2. EFFECTIVE DATE: TERM, SS1G?R4E-?;T- 2. 1 Effective Date. This Agreement has been entered into by the parties as of the date and year first above written (the "Execution Date") . This Agreement shall become effective on the date on which the Developer acquires the Property from ACD2 pursuant to the Purchase Agreement (the "Effective Date") . Not- 0 withstanding the foregoing, if the Effective Date shall not have occurred prior to the date which is 6.;>rmonths from the Execution Date, then this Agreement shall be null and void, ab initio, and shall terminate automatically. In such event, the DDIA shall remain in full force and effect and the Property shall continue to be subject to the benefits and obligations of the DDIA as they existed on the Execution Date. 2 . 2 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on May 1, 2000, unless sooner terminated or extended as hereinafter provided. KKR42074 11-09-94 DRAFT DDIA -7- 3 . GENERAL DEVELOPMENT OF THE PROPERTY; AGENCY FINDINGS AND ACTIONS. The City and the Developer have entered into the Development Agreement which provides for the development of the Property, and the terms and conditions under and with respect to which the Developer shall be entitled to develop the Property and receive all permits, certificates and other entitlements to be issued or provided by the City and necessary for the construction, use and occupancy of the Property. Notwithstanding any provision to the contrary contained herein, the Agency agrees that, to the , extent permitted by law, the terms and provisions of the Develop- ment Agreement shall be controlling as to all matters pertaining to the permitting and entitlement of the Property, the timing of the development of the Property, and the permitted uses to which the Developer may put the Property. Any successor in interest to the i Developer under and pursuant to the terms of the Development Agreement shall be deemed to be the "Developer" under this Agreement for all purposes and only those purposes, of Sections 3 and 3 . 1 hereof, and any such successor in interest shall be entitled to the benefits provided under Sections 3 and 3 . 1 hereof; provided, however, that the transfer or succession of all other of Developer' s rights, interests, covenants and obligations under this Agreement, shall be governed by the applicable provisions of Sections 4 . 10 and 12 of this Agreement. 3 . 1 Agency Findings. The Agency has reviewed the Development Agreement and hereby finds and determines that the development of the Property in the manner provided and as contem- KKR42074 _ 11-09-94 DRAFT DDIA -8 plated therein will be in furtherance of and consistent with the goals and policies of the Redevelopment Plan, and in conformance with the requirements of the development guidelines contained therein as adopted by the Agency pursuant thereto, and that the process of permitting and entitlement set forth in the Development Agreement is consistent with the permitting and entitlement process contained in such development guidelines. Based upon the foregoing findings, the Agency hereby agrees that it will take all reasonable actions necessary under the Redevelopment Plan and the development guidelines contained therein to insure that the benefits afforded to the. Developer by the Development Agreement with respect to the permitting and entitlement of the Property, the timing of the development of the Property, and the permitted uses to which the Developer may put the i Property, will not be impaired as a result of Agency action or inaction; provided, however, that such obligations of the Agency shall be expressly conditioned upon the satisfaction of all conditions precedent, concurrent, and subsequent to such obligations as , provided by this Agreement and the Development Agreement. The Agency hereby agrees that, except as to charges, fees, and improvements expressly addressed herein the implementation and furtherance of the goals and policies of the Redevelopment Plan and the development guidelines will not require the imposition of any Exactions (as defined in the Development Agreement) , the construction of any public improvements by the KKR42074 11-09-94 DRAFT DDIA -9- Developer, or the reservation or dedication of land by the Developer for public purposes. In addition, the Agency hereby agrees that the provisions of the Development Agreement pertaining to the process for the application of all permits, certificates and approvals necessary for the development of the Property (including, but not limited to, the development and construction of the Minimum Improvements) , the fees charged for the processing of such applica- tions and the standards upon which such permits, certificates and approvals will be issued, are consistent with and satisfy the P requirements of the Redevelopment Plan and the development guidelines, and that the Agency, except to the extent that the Agency is otherwise required to do so by either State statute or a final decision of a court of competent jurisdiction; (i) will take no actions with respect to the Property in 0 implementing the provisions of the Redevelopment Plan or such development guidelines which are inconsistent with such provisions of the Development Agreement, or which would otherwise impair or delay the development of the Property or increase the costs to be incurred by the Developer with respect thereto, unless the impairment or increase in costs is insubstantial, or (ii) will not, after the date hereof and without receiv- ing the prior written approval of the Developer, adopt or approve an amendment to the Redevelopment Plan or the development guide- lines which would impair Developer ' s rights under this Agreement or the Development Agreement, or alter the uses to which the Property or the Project may be put. KKR42074 11-09-94 DRAFT DDIA -1 0- 4. CONSTRUCTION OF MINIMUM IMPROVEMENTS AND USE OF THE PROPERTY. 4 . 1 Agreement to Construct Minimum Improvements. Developer agrees that if, in the exercise of its discretion as provided in the Development Agreement, it develops the Project (as defined in the Development Agreement) , it will develop and construct, at its sole cost, expense and liability, the Minimum Improvements in accordance with any and all plans, drawings, and related documents submitted to and approved by the City in connec- tion with the development of the Property in accordance with the Development Agreement (collectively, the "Minimum Improvement Plans") . The Developer shall submit to the Agency a copy of all Minimum Improvement Plans contemporaneously with any such submis- sion to the City. The Agency shall have the right to review and approve the Minimum Improvement Plans for the purpose of determin- ing that the Minimum Improvements will be constructed in a manner consistent with the goals and policies of the Redevelopment Plan; provided, however, that (1) the Agency shall be deemed to have approved any Minimum Improvement Plan if it fails to respond in writing to the Developer's submission thereof within 20 days after such submission; and (2) the Agency shall not unreasonably withhold or delay its approval, and shall not withhold or delay its approval in any event if either (a) all necessary discretionary approvals, consents, and entitlements have been obtained by Developer from the City with respect to the matter to be approved by the Agency or (b) the Minimum Improvement Plans submitted are a logical evolution KKR42074 11-09-94 DRAFT DDIA or progression of and not in conflict with the Minimum Improvement Plans theretofore approved by the Agency. Any disapproval by the Agency shall state in writing in reasonable detail the reasons for disapproval and the changes which the Agency requests to be made. Such reasons and such changes must be consistent with any items previously approved or deemed approved hereunder. The Agency agrees that it will not impose any condition upon the construction of the Minimum Improvements or require any modification of the Minimum Improvement Plans which will conflict with any City requirement applicable to the construction of the Minimum Improvements. Once any submission is approved by the Agency, the same shall be in accordance with the Redevelopment Plan and in compliance with the provisions of this Agreement, and shall not be subsequently disapproved unless required by law upon the A advice of the Agency' s legal counsel. 4 . 2 Cost of Construction; Reporting to Agency. The Developer shall be responsible for all costs of developing and constructing the Minimum Improvements. During periods of construc- tion, the Developer shall submit to the Agency a written report of the progress of the construction when and as reasonably requested by the Agency (but not more frequently than quarterly) . The report shall be in such form and detail as may be reasonably required by the Agency. 4 . 3 [Reserved] 4 . 4 [Reserved] KKR42074 _ -1 2 11-09-94 DRAFT DDIA 4 .5 Indemnification During Construction: Bodily Iniury and Property Damage Insurance. During the period commencing upon the date of commencement of construction of the Minimum Improve- ments and ending on such date as the Agency is required to issue the Minimum Improvements Certificate of Compliance, and in addition to any similar provisions in the Easement Agreement, the Developer agrees to and shall defend, indemnify and hold the Agency and the City and their respective officers, employees, contractors and agents harmless from and against all liability, loss, damage, costs, or expenses (including reasonable attorneys' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall occur directly or indirectly as a result of this Agreement or any actions taken by i Developer pursuant to this Agreement, and which shall be directly or indirectly caused by any negligent or wrongful errors or omissions of the Developer or its agents, servants, employees, or contractors with respect to the construction of the Minimum Improvements. The Developer shall not be responsible for, and such indemnity shall not apply to, any acts, errors, or omissions (or breach of this Agreement) of the Agency or the City or their respective agents, servants, employees, or contractors. The fore- going provisions shall survive the termination or expiration of this Agreement, but only as to accidents, injuries, losses or damage which occur or which are incurred before such termination or expiration. KKR42074 11-09-94 DRAFT DDIA -1 3- During the period commencing upon the date of commence- ment of construction of the Minimum Improvements and ending on the date the Agency is required to issue the Minimum Improvement Certificate of Compliance, the Developer shall furnish or cause to be furnished to the City and Agency, duplicate originals or appropriate certificates of insurance evidencing insurance issued by insurance carriers rated at least B + VIII in Best' s Insurance Guide and naming the City as an additional insured party as follows: A. Comprehensive general liability (bodily injury and property damage) , blanket contractual liability, and personal injury liability, all with limits of not less than $2 , 000, 000 each and a combined single limit per occurrence basis of no less than $5, 000, 000, and workers compensation insurance. i B. Endorsements containing the following three provisions shall be obtained for the policies providing the above insurance: 1 . Additional named insureds: "The Palm Desert Redevelopment Agency, the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees are added as additional named insureds with respect to this subject project and contract with the Agency. " 2. Notice: "Said policy shall not terminate nor shall it be canceled or the coverage reduced until after 30 days written notice is given to the Palm Desert Redevelopment Agency. " KKR42074 -14- 11-09-94 DRAFT DDIA 3 . Primary coverage: "Said policy and coverage as is afforded to the Palm Desert Redevelopment Agency and the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees shall be primary insurance and not contributing with any other insurance maintained by the Palm Desert Redevelopment Agency or the City of Palm Desert. " 4 . 6 Antidiscrimination During Construction. The Devel- oper, for itself and its successors and assigns, covenants and agrees that in the construction of the Minimum Improvements, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, creed, religion, national origin, or ancestry or disability covered under the Americans With Disabilities Act (being 42 U.S.C. § 12101 et seq. ) . 4 . 7 Local State and Federal Laws. The Developer shall carry out the construction of the Minimum Improvements in conform- ity with all applicable laws, including all applicable Federal and State of California labor standards. The Agency represents that the United States is not a party to any contract at this time regarding the construction of the Minimum Improvements, and that such construction is not at this time financed, in whole or in part, by loans or grants from the United States. All costs of construction of the Minimum Improvements shall be paid by (or caused to be paid by) Developer, without participation in the costs of construction by the Agency. No public bidding procedures or KKR42074 11-09-94 DRAFT DDIA -1 5- requirements as to the payment of prevailing wages shall be applicable with respect to the construction of the Minimum Improvements; provided, however, that in the event that a court of competent jurisdiction determines that the construction of any or all of the Minimum Improvements were subject to public bidding or prevailing wage requirements, Developer agrees to and shall indem- nify, defend and hold the City, the Agency and their respective officers, employees, contractors, and agents harmless from and against all liability, loss, damage, backwages, fines, penalties, costs, or expenses (including reasonable attorneys fees and court costs) arising from or as a result of the determination that the construction of some or all of the Minimum Improvements were subject to public bidding or prevailing wage requirements. 4 . 8 City and Other Governmental Agency Permits. Before commencement of construction of the Minimum Improvements, the Developer shall, at its own expense, secure or cause to be secured any and all permits which may be required by the City or any other governmental agency having jurisdiction over such construction. The Agency may provide reasonable assistance to the Developer in securing such permits. 4 .9 Rights of Access. Representatives of the Agency shall have the reasonable right of access to the Property, or any part thereof, without charges or fees, at normal construction hours during the period of construction of the Minimum Improvements for purposes of determining compliance with plans approved under this Agreement, or the provisions of the Redevelopment Plan, including, KKR42074 -16- 11-09-94 DRAFT DDIA but not limited to, the inspection of the work being performed in constructing the Minimum Improvements, and the Developer shall upon receipt of written request from the Agency, make appropriate representatives available at the Property during the course of such inspections by the Agency. Such representatives of the Agency shall be those who are so identified in writing by the Executive Director of the Agency. Such Agency representatives shall have access to the Property only when accompanied by representatives of Developer and only if the Agency representatives have been previ- , ously identified to Developer in writing. Agency shall indemnify and hold the Developer harmless from any claims, liabilities, costs and expenses (including reasonable attorney' s fees and costs) resulting directly or indirectly from any wilful or negligent acts of Agency or its representatives arising from such entry. 4 . 10 Prohibition Against Transfer. Subject to the provisions of Section 12 hereof, no voluntary or involuntary successor in interest of the Developer shall acquire any rights under this Agreement with respect to the Property or assume, or be deemed to have assumed, any obligations or duties hereunder with respect to the construction of the Minimum Improvements except as expressly set forth herein. Prior to the date the Agency is required to issue the Minimum Improvement Certificate of Completion, the Developer shall not assign or attempt to assign this Agreement or any right herein with respect to the Property, or delegate or transfer or attempt to delegate or transfer any obligations or duties of the Developer KKR42074 11-09-94 DRAFT DDIA -1 7- hereunder with respect to the construction of the Minimum Improve- ments, without the prior written approval of the Agency, which approval may be given or withheld in the Agency's sole and absolute discretion. The foregoing prohibition shall not apply to the following: (a) Any Mortgage; (b) The sale or conveyance of the Property or any portion thereof to any Mortgagee; (c) The sale, ground leasing or transfer of any portion of the Property to any purchaser, transferee or tenant occupying at least 15, 000 square feet of gross leasable area in the Project ("Major") , provided such Major is an experienced retailer which generally acquires sites in retail centers for the purposes of 0 erecting, constructing, maintaining and operating (or causing to be erected, constructed, maintained and operated) retail stores, and provided further that such Major' s use or proposed use of the property or the improvements thereon is consistent with the Minimum Improvement Plans approved by the Agency pursuant to this Agreement; (d) The conveyance or dedication of any portion of the Property to the City, Agency, or other appropriate governmental agency, or the granting of easements or permits to facilitate the development of the Property; (e) The leasing of space for occupancy in the Project; KKR42074 _1 8_ 11-09-94 DRAFT DDIA (f) The sale, ground leasing or leasing of any portion of the Property and improvements thereon for development pads approved as such by the Agency on the Minimum Improvement Plans approved by Agency pursuant to this Agreement. The Agency's approval shall not be required for any assignment, delegation or transfer to any Developer Affiliate. For purposes of this Section 4 . 10, the term "Developer Affiliate" shall mean a partnership or joint venture in which any of The Madison Realty Partnership, Limited Partnership ("Madison") , John P. Boorn ("Boorn") or James S. Bennett ("Bennett") or William Bone ("Bone") is a general partner, or any other entity which is controlled by Madison, Boorn, Bennett or Bone, singly or in any combination. Provided that all conditions of this Section 4 . 10 have been satisfied, the Agency shall take all actions reasonably A necessary to accomplish the transfer, assignment, conveyance or delegation of such rights and interests and such duties and obligations as permitted pursuant to this Section 4 . 10, including, but not limited to, the execution by the Agency of such instruments or documents as the Developer may reasonably request to evidence the release of the Developer from any such duties or obligations; provided, however, that the Agency shall not be required to so act if it reasonably believes that to do so would materially impair its rights or obligations under this Agreement. 4 . 11 (Reserved] 4 . 12 Minimum Improvement Certificate of Compliance. Within 20 days after the Developer 's satis€aetery completion of KKR42074 11-09-94 DRAFT DD1A -1 9- construction of the Minimum Improvements In compliance with an7 ...... ap ali- b. requirements of this Agreement or the Qe r opment 3g eemen (regardless of whether any other improvements upon the Property shall have been completed) , the Agency shall furnish to the Developer a certificate of compliance ("Minimum Improvement Certificate of Compliance") which shall be, and shall state that it is, a conclusive determination of satisfaction of all of the Developer's obligations with respect to the Minimum Improvements in full compliance with this Agreement, the Development Agreement and the Redevelopment Plan. Developer shall have the right to cause such Certificate to be recorded in the office of the Recorder of Riverside County. If the Agency refuses or fails to furnish either a Minimum Improvement Certificate of Compliance after written request A from the Developer, the Agency shall, within 20 business days of the written request, provide the Developer with a written statement which details the reasons the Agency refused or failed to furnish such Certificate. The statement shall also contain the Agency's determination of the action the .Developer must take to obtain such Certificate. If the reason for such refusal is confined to the immediate unavailability of specific items or other "punch list" items, Agency shall issue the Certificate upon the Developer completing same or, at Developer' s option: (i) posting a bond with Agency in an amount equal to the reasonable cost of the work not yet completed, or (ii) permitting Agency to hold back from the Purchase Price an amount equal to the reasonable cost of the work KKR42074 _2 0_ 11-09-94 DRAFT DD1A not yet completed. If no written statement is delivered within said 20 business day period (or within 20 business days after Developer shall have notified Agency that Developer has satisfied either of (i) or (ii) of the immediately preceding sentence) , Developer shall be deemed entitled to the Minimum Improvement Certificate of Compliance. 4 . 13 Uses. The Developer covenants and agrees for itself, its' successors, its assigns, and every successor in interest to the Property, or any part thereof, that during the period commencing upon the Closing of the Easement Agreement Transaction (defined in Section 5. 1 hereof) and ending upon the expiration of the term of the Redevelopment Plan, the Developer, such successors and such assigns agree that the use of the Property (and any part thereof) shall be in compliance with the Redevelop- ment Plan, as amended (subject to Section 3 . 1 hereof) , or such other uses as may be approved by the Agency in its sole and absolute discretion. It is understood and agreed by the Developer that, except as otherwise provided in this Agreement or the Development Agreement, neither the Developer, nor its assigns or successors in interest to the Property or this Agreement, shall use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the Property or any portion thereof to any entity or party, or for any use of the Property, that is partially or wholly exempt from the payment of real property taxes pertinent to the Property, or any portion thereof, or which would cause the exemption of the payment of all or any portion of such real KKR42074 11-09-94 DRAFT DD1A -2 1- property taxes, during the time that the Redevelopment Plan is in effect. 4 . 14 [Reserved] 4 . 15 Obligation to Refrain from Discrimination. The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segrega- tion of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property; nor shall the Developer, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with refer- ence to the selection, location, number, use or occupancy of i tenants, lessees, subtenants, sublessees or vendees of the Property. 4 . 16 Form of Nondiscrimination and Nonsegregation Clauses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property, that the Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property (or any part thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or natural origin of any person. All deeds, leases or contracts pertaining thereto shall contain or be KKR42074 -2 2- 11-09-94 DRAFT DDIA v subject to substantially the following nondiscrimination or non- segregation clauses: (a) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimina- tion or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, subles- sees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " (b) In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry, in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the KKR42074 11-09-94 DRAFT DDIA -2 3- selection, location, number or occupancy of tenants, lessees, sublessees, tenants, or vendees in the land herein leased. " (c) In contracts: "There shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the land nor shall the contractor, or anyone claiming through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. " Agency and Developer agree that, upon sale or lease of any portion of the Property to a third party, that Developer shall i be obligated to include in any sale or lease documents the provi- sions contained in this Section 4 . 16 but that Developer shall have no obligation to insure or guarantee the performance of said successor or lessee with respect to the provisions of this Section 4 . 16. 4 . 17 Incorporation of Easement Agreement Covenants and Obligations. The Agency and Developer acknowledge and agree that the Easement Agreement (defined in Section 5. 1 hereof) contains certain covenants and obligations with respect to the Parking Rights and the parking facilities of the Minimum Improvements which are not set forth in the body of this Agreement. Agency and Developer agree that the provisions of the Easement Agreement are KKR42074 -2 4- 11-09-94 DRAFT DDIA hereby incorporated in their entirety by this reference into this Agreement for the duration of the term of this Agreement and such covenants and obligations shall be binding and enforceable pursuant to this Agreement and the Easement Agreement upon recordation of the Easement Agreement, subject to the terms, conditions, and limitations (if any) upon such covenants and obligations as set forth in the Easement Agreement and this Agreement. 5. ACQUISITION OF PARKING RIGHTS. 5. 1 Parking Rights. Developer hereby agrees to sell to the Agency, and the Agency hereby - agrees to purchase from Developer, the Parking Rights (as hereinafter defined) for the "Purchase Price" (as hereinafter defined) . The "Parking Rights" shall mean (a) the Parking Management Plan and (b) the Easement Agreement (each as hereinafter defined) . J The "Parking Management Plan" shall mean a plan for the efficient operation and management of all of the parking on the Property. The Parking Management Plan shall be prepared under Developer' s supervision by a parking consultant retained by Developer at Developer' s sole cost, liability and expense, after obtaining Agency's reasonable approval of the parking consultant. The Parking Management Plan and any amendments thereto shall be subject to the reasonable approval of the City's Planning Director and the Agency' s Executive Director. If Agency fails to respond to any request by Developer for approval of a parking consultant, the Parking Management Plan, or any amendment thereto, within 30 days after Developer' s request therefor, such approval shall be deemed KKR42074 -2 5- 11-09-94 DRAFT DDIA to have been given. The Parking Management Plan shall include, among other things, Developer's rights (and any limitations thereon) with respect to the operation of the parking upon the Property including, without limiting the generality of the fore- going, with respect to valet parking, parking validations and employee parking. Although the Parking Management Plan shall be approved in advance of the Closing (as hereinafter defined) , it shall not be effective unless and until the Closing occurs and, without limiting the generality of the foregoing, shall not be effective unless and until Agency pays to Developer the Purchase Price. The "Easement Agreement" shall mean an agreement and grant deed, substantially in the form of Exhibit E attached hereto, granting to the Agency a non-exclusive easement (the "Easement") A for public parking purposes over all parking areas located on the Property, and setting forth certain obligations of Developer and certain rights of Agency with respect to all of the parking areas on the Property. The closing of the. Easement Agreement transaction ("Closing") shall be by means of the escrow as hereinafter described in Section 5. 4 through 5. 10; provided, however, that the Agency' s obligation to consummate the Easement Agreement transaction ("Easement Agreement Transaction") shall be subject to and contingent upon successful and timely construction of the Minimum Improvements, as more particularly described herein. Agency and Developer acknowledge and agree that satisfaction of the KKR42074 _ 11-09-94 DRAFT DDIA -2 6 conditions precedent set forth in Section 5.7 hereof including, without limitation, the construction of the Minimum Improvements, is material consideration for the Agency's agreement to pay the Purchase Price (as hereinafter defined) . 5.2 The Purchase Price. The Purchase Price for the Parking Rights shall be the sum of Five Million Dollars ($5, 000, 000. 00) (the "Purchase Price") . The Purchase Price shall be deposited into escrow at least 3 days prior to the Closing. The Agency' s obligation to pay the Purchase Price, subject to the conditions and limitations contained in this Agreement, shall constitute an indebtedness of the Agency within the meaning of the Redevelopment Legislation (Health and Safety Code Section 33000, et seq. ) and the Redevelopment Plan. The Agency shall take all actions necessary to reflect such indebtedness and its Purchase Price obligations hereunder. Such obligations shall continue to remain in full force and effect unless and until this Agreement is terminated or Agency' s obligation to acquire the Parking Rights and pay the Purchase Price has been terminated pursuant to the terms of this Agreement. Such Purchase Price obligations shall be subordinate to all set aside obligations under Health and Safety Code Section 33334 . 2 , tax sharing agreements, bonds, notes, certificates of participation, loan agreements with the Palm Desert Financing Authority, and similar indebtedness of the Agency with respect to which the Agency has pledged, or will pledge, tax increment and which is incurred by the Agency prior to or after the Effective Date; provided, however, the Agency will not incur such KKR42074 11-09-94 DRAFT DDIA -27- future indebtedness if the effect would be to impair its ability to satisfy its Purchase Price obligations pursuant to this Agreement. The Agency warrants and represents that, to the best of its knowledge, the indebtedness of the Agency which will exist as of the Effective Date will not impair the Agency's ability to make timely and full payment of the Purchase Price as provided in this Agreement. The Agency agrees, upon written request of the Developer, but in no event more than twice per calendar year, to provide such financial information as Developer may reasonably request to confirm the Agency' s ability to make timely and full payment of the Purchase Price as provided in this Agreement. 5. 3 Damages and Remedies for Developer' s Default. IN THE EVENT THAT DEVELOPER, FOR ANY REASON WHATSOEVER OTHER THAN A DEFAULT BY AGENCY, FAILS TO CONSUMMATE THE EASEMENT AGREEMENT TRANSACTION PURSUANT TO THE TERMS OF THIS AGREEMENT, THEN THE AGENCY MAY, AT ITS SOLE AND ABSOLUTE DISCRETION, CANCEL AND TERMINATE THIS AGREEMENT IN ITS ENTIRETY, AND ANY INTEREST CREATED BY IT, AND RECEIVE A REFUND OF THE PURCHASE PRICE WHICH HAS BEEN PLACED INTO ESCROW (AS PROVIDED IN SECTIONS 5. 4 THROUGH 5. 10 HEREOF) , AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT. THE PARTIES RECOGNIZE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO AGENCY CAUSED BY THE BREACH BY DEVELOPER OF ITS OBLIGATION TO CONSUMMATE THE EASEMENT AGREEMENT TRANSACTION OR THE AMOUNT OF COMPENSATION AGENCY SHOULD RECEIVE AS A RESULT OF BUYER' S KKR42074 _2 8_ 11-09-94 DRAFT DDIA BREACH OR DEFAULT OF ITS OBLIGATION TO CONSUMMATE THE EASEMENT AGREEMENT TRANSACTION. SUCH RECOVERY OF THE PURCHASE PRICE AND RIGHT TO TERMINATE THIS AGREEMENT SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF AGENCY BY REASON OF ANY BREACH OR DEFAULT BY DEVELOPER UNDER OR IN CONNECTION WITH SUCH OBLIGATION TO CONSUMMATE THE EASEMENT AGREEMENT TRANSACTION, AND SHALL BE IN LIEU OF ANY OTHER MONETARY RELIEF OR, WITHOUT LIMITATION, ANY OTHER RELIEF TO WHICH AGENCY MAY OTHERWISE BE ENTITLED IN THE EVENT OF SUCH BREACH OR DEFAULT. Developer Agency 5. 4 Escrow. The escrow instructions set forth in these Sections 5.4 through 5. 10 shall apply to the Closing of the Ease- ment Agreement Transaction. Any reference to "Developer" in these i escrow instructions shall mean the party signing this Agreement as Developer and any successors and assigns who assume the obligations of Developer as permitted by this Agreement. (a) The Agency and Developer agree to establish the escrow for the Easement Agreement Transaction with Lawyers Title Insurance Corporation, Suite 250, 800 East Colorado Boulevard, Pasadena, CA 91101, or such other escrow agent mutually agreed upon by the parties hereto (the "Escrow Agent") , within 10 days following the Effective Date. Agency' s obligation to close escrow shall be conditioned upon the issuance by Lawyers Title Insurance Company ("Title Company") of an ALTA form title insurance policy KKR42074 11-09-94 DRAFT DD1A -2 9- insuring that upon the close of escrow, pursuant to (and subject to the terms and conditions of) the Easement Agreement, the Agency has non-exclusive easement rights for public parking as described in Section 5. 1 hereof, subject only to those exceptions expressly permitted in this Agreement or otherwise approved by the Agency. In the event that the Title Company sets forth requirements for the issuance of an ALTA title insurance policy applicable to the Easement other than those requirements specifically set forth in this Agreement, and such requirements are unacceptable to the Agency (in the exercise of its sole discretion) , then the parties may select another title insurance company by mutual agreement, and all times for performance of actions thereafter shall be automatic- ally extended for 30days. Sections 5.4 through 5. 10 of this Agreement constitute the joint escrow instructions of the Agency 0 and Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. (b) The Agency and Developer shall provide and execute such additional escrow instructions consistent with this Agreement as shall be necessary. The Escrow Agent is hereby empowered to act under this Agreement, and upon indicating its acceptance of its obligations under Sections 5. 4 through 5. 10 of this Agreement in writing, delivered to the Agency and Developer within 5 days after the establishment of the escrow, shall carry out its duties as Escrow Agent hereunder. (c) Upon delivery by Developer and Agency to the Escrow Agent of the Easement Agreement pursuant to Section 5. 8 of this KKR42074 11-09-94 DRAFT DDIA -3 0- Agreement, substantially in the form attached hereto as Exhibit E, the Escrow Agent shall record such Easement Agreement in accordance with these escrow instructions, provided that title to the Easement can be vested in the Agency in accordance with the terms and provisions of this Agreement, and provided that Escrow Agent is prepared to comply with its obligations under Section 5. 10 hereto to deliver the Purchase Price to Developer. The Escrow Agent shall pay out of the amounts deposited into escrow any documentary transfer taxes required by law. (d) The Agency and Developer shall deliver to the Escrow Agent all documents necessary for the conveyance of the Easement to the Agency in conformity with, within the times, and in the matter provided in this Agreement. (e) The Agency shall pay into escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs (but in no event earlier than 5 days prior to the Closing) : 1. One-half of the escrow fee. (f) Developer shall pay into escrow to the Escrow Agent the following fees, charges, and costs promptly after the Escrow Agent has notified Developer of the amount of such fees, charges and costs (but in no event earlier than 5 days prior to the Closing) : 1. One-half of the escrow fee; 2 . The cost of recording the Easement Agreement; KKR42074 11-09-94 DRAFT DDIA -3 1- 3 . The cost of the ALTA title insurance policy required hereby (provided, however, that Agency shall be responsible for the cost of any endorsements) ; 4. Any documentary transfer taxes required by law; and 5. Notary fees. (g) Developer and Agency shall timely and properly execute, acknowledge and deposit into escrow the Easement Agreement in accordance with the requirements of this Section 5.4 and in the form required by Section 5. 6 of this Agreement.. (h) The Escrow Agent is authorized to: 1. Pay and charge the Agency and Developer for any fees, charges and costs payable under this Section 5. 4 . Before the close of escrow, the Escrow Agent shall notify the Agency and Developer of the estimated costs of any and all the fees, charges and costs necessary to clear title and close the escrow; 2 . Disburse funds and deliver the Easement Agreement and other documents to the parties entitled thereto on the conditions of this escrow having to be fulfilled by the Agency and Developer. Such funds shall not be disbursed and delivered by the Escrow Agent to Developer unless and until the Escrow Agent has recorded all documents required to be recorded as conditions for the close of escrow, as set forth in Section 5. 7 hereof, including but not limited to the Easement Agreement; KKR42074 11-09-94 DRAFT DDIA -3 2_ 3 . Record the instruments delivered through the escrow if necessary or proper pursuant to the terms of this Agreement and otherwise to convey the Easement to the Agency in accordance with the terms and provisions of these escrow instructions. The parties acknowledge and agree that development of the Minimum Improvements may be completed prior to the compliance of any other improvements upon the Property which Developer may elect to construct. The Agency shall have no obligation to acquire the Easement, and the Escrow Agent shall not tender any portion of the Purchase Price to Developer, until such time as all conditions to the close of escrow as set forth in Section 5 . 7 hereof are satisfied or waived in writing by the Agency. (i) [Reserved] J (j ) If this escrow is not in a condition to close on or before the Outside Closing Date- set forth in this Section 5.4 (j) , subject to any and all extensions authorized by this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance may, in writing, demand the return of its money, papers or documents from the Escrow Agent and/or the termination of this Agreement, as applicable. No demand for return of such money, papers or documents shall be recognized until 10 days after the Escrow Agent shall have sent copies of such demand to the other party in accordance with the requirements of Section 7. 1 hereof. Objections, if any, shall be raised by written notice submitted to the Escrow Agent and to the other party within said 10 KKR42074 11-09-94 DRAFT DDIA -3 3- day period, in which event the Escrow Agent is authorized to hold all money, papers and documents until further instructed by mutual agreement of the parties or, upon failure of the parties to agree, then by order or decree of a court of competent jurisdiction. If no demands or objections are made, the escrow shall be closed as soon as possible. The "Outside Closing Date" shall mean 5 years from the Effective Date, subject to any extensions permitted by Section 4 . 3 hereof. (k) Any amendment to these escrow instructions shall be in writing and signed by both the Agency and Developer. At the time of execution of any amendment to these escrow instructions, the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. (1) All communications from the Escrow Agent to the 0 Agency or Developer shall be directed to the respective parties at the addresses set forth in Section 7 . 1 of this Agreement for notices, demands and communications between the Agency and Developer. (m) The liability of the Escrow Agent under this Agree- ment is limited to performance of its obligations imposed upon it under Sections 5. 4 through 5. 10, inclusive, of this Agreement. 5. 5 Conveyance of Easement Title. Subject to (a) satis- faction or waiver of the conditions set forth in Section 5.7, hereof; and (b) any mutually agreed upon written extension of time or extensions otherwise authorized by this Agreement, conveyance to the Agency of title to the Easement in accordance with the provi- KKR42074 11-09-94 DRAFT DDIA -34- sions of this Section and Section 5. 4 of this Agreement shall be completed on or prior to the Outside Closing Date. The Agency shall accept title to the Easement on the date established therefor in this Section 5. 5, provided that all conditions precedent to the Agency's obligation to accept title to the Easement have been fulfilled or waived in writing by the Agency. Escrow shall be deemed to be in a condition to close at such time as Developer can deliver and convey to the Agency title to the Easement, subject to satisfaction or written waiver of the conditions set forth in Section 5. 7, and otherwise in accordance with the provisions of this Agreement. 5. 6 Form of Easement. Developer shall convey to the Agency title to the Easement by the Easement Agreement substan- 0 tially in the form attached hereto as Exhibit E. 5.7 Conditions for Close of Escrow. (a) The Agency's obligation to close escrow and pay the Purchase Price shall be expressly conditioned upon the prior satisfaction or written waiver by the Agency of the following conditions: 1 . The deposit by Developer into escrow of the executed and notarized Easement Agreement, substantially in the form of Exhibit E, with an approved Parking Management Plan attached thereto. KKR42074 11-09-94 DRAFT DD1A -3 5- 2 . The deposit into escrow by Developer of all sums required to be deposited by it into the escrow pursuant to this Agreement. 3 . A Minimum Improvement Certificate of Compliance shall have been issued by Agency (or Developer shall have become entitled to same) pursuant to Section 4 . 12 of this Agreement. 4 . The acceptance by the Agency of the conditions or exceptions set forth in the ALTA title insurance policy to be provided pursuant to Section 5. 4 (a) of this Agreement. After receipt of a preliminary title report ("PTR") for such title insur- ance policy, the Agency shall have 30 days to review, accept, or reject any exceptions or conditions contained in the PTR which would be applicable to the Agency 's acquisition of title to the Easement. In the event the Agency fails timely to reject, in writing, such exceptions and conditions, which rejection may be made in the Agency' s sole discretion, the Agency shall be deemed to have accepted the PTR and the exceptions and conditions contained therein. 5. The deposit into escrow for recordation (or the prior recordation) of a subordination agreement executed by the holder of any Mortgage upon the Property, subordinating the lien of the Mortgage to the Easement. 6. The Developer having provided the Certificates of Insurance described in the Easement Agreement. 7 . The Developer having commenced construction of the Minimum Improvements within 42 months following the Effective KKR42074 11-09-94 DRAFT DDIA -3 6_ Date of this Agreement. For purposes of the foregoing, commence- ment of construction shall be deemed to have occurred if prior to the expiration of the such 42 month period, Developer has obtained the first grading permit (or more inclusive permit including the right to grade) applicable to the Property and has thereafter commenced grading of the Property in preparation for the construction of the Minimum Improvements. 8 . The Developer having completed construction of the Minimum Improvements no later than 60 months following the Effective Date of this Agreement. For purposes of the foregoing, construction will be deemed to have been completed when Developer has received, or has become entitled to receive, a Minimum Improvement Certificate of Compliance pursuant to Section 4 . 12 of this Agreement. i The 42 month deadline for the commencement of construc- tion and the 60 month deadline for the completion of construction of the Minimum Improvements may be extended as provided in Section 7.4 of this Agreement. (b) Developer' s obligation to convey the Easement to the Agency and the close of escrow shall be expressly conditioned upon satisfaction or waiver by Developer of each of the following: 1. The Agency shall have deposited into escrow the Purchase Price (which Purchase Price shall also be in escrow immediately prior to the close of escrow) and all other sums required to be deposited by it into the escrow pursuant to this Agreement. KKR42074 11-09-94 DRAFT DDIA -3 7- 2 . The deposit by Agency into escrow of the executed and notarized Easement Agreement, substantially in the form of Exhibit E, with an approved Parking Management Plan attached thereto. Notwithstanding any provision herein to the contrary, in the event that any condition precedent to the Agency' s obligation to close escrow, as set forth in this Section 5.7, is not satisfied or otherwise waived by the Agency, then the Agency, in its discre- tion, and subject to the satisfaction of all conditions precedent to Developer' s obligation to convey the Easement as set forth in this Section 5.7, may submit written notice to Developer and the Escrow Agent that the Agency waives or otherwise deems satisfied conditions for the close of escrow, and thereupon escrow shall expeditiously and with due diligence proceed to close. 5. 8 Time and Place for Delivery of Documents to Escrow. Subject to any mutually agreed upon written extensions of time, or any extensions otherwise authorized by this Agreement, the parties shall deposit with the Escrow Agent promptly at such time as such documents have been fully prepared and executed, but in no event later than 5 days before the date scheduled for Closing, any and all documents which are required in order for escrow to close in accordance with Section 5. 5 hereof. 5.9 Taxes and Assessments. Ad valorem taxes and assessments, if any, on the parking area subject to the Easement Agreement and taxes upon this Agreement or any rights hereunder KKR42074 11-09-94 DRAFT DDIA -3 8_ levied, assessed or imposed shall be paid by Developer, both before and after conveyance of the Parking Rights to the Agency. 5. 10 Delivery of Documents. Immediately after close of Escrow, Escrow Agent shall deliver the Purchase Price to Developer by its check to Developer sent by overnight delivery service (or, if Developer shall have provided wire transfer instructions, by wire transfer of immediately available federal funds) and shall deliver a recordation conformed copy of the Easement Agreement to each of Agency and Developer. 6. DURATION OF COVENANTS; DEFAULTS REMEDIES AND TERMINATION. 6. 1 Effect and Duration of Covenants and Agreements. Unless otherwise provided herein, the covenants established in this 0 Agreement shall, without regard to technical classification and designation, be binding on the Developer and any successor in interest to the Property, for the benefit and in favor of the Agency, its successors and assigns. Unless earlier terminaatec :upon the termination of ' this 'Agreement by ,either party pursuant c� Sections 5.3 , 6.6'' or 6.8 hereof, ;tThe covenants set forth in Sections 4 . 13 , and 7 . 5 hereof shall remain in effect until t-he ear-lien (i) the }ern for those certain periods specified therein in Seetien 4: 13 , and 7-5-eree€. The covenants set forth in Sections 4 . 15 and 4 . 16 hereof shall remain in effect in perpetuity unless this Agreement is terminated KKR42074 11-09-94 DRAFT DDIA -3 9- by Agency or Developer by reason of the other party's failure to, as applicable, either commence or complete construction of the Minimum Improvements or to pay the Purchase Price in accordance with this Agreement. In the event of termination for the foregoing reasons, the covenants contained in Sections 4 . 15 and 4 . 16 shall not remain in perpetuity and shall expire with the termination of this Agreement. Except as specifically set forth above or as otherwise expressly provided in this Agreement, all covenants, agreements and conditions contained in this Agreement shall expire upon the termination of this Agreement. 6. 2 Defaults. Subject to extensions of time as permitted in this Agreement, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who fails or delays shall within the time periods set forth herein commence to cure and cure such failure or delay in accordance with the provisions of Section 6.7 hereof. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default. The Agency shall send copies of any such default notices to such persons and entities as Developer may designate pursuant to this Agreement. Except as otherwise expressly provided in this Agreement, any failures or delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and KKR42074 11-09-94 DRAFT DDIA -4 0- maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. In the event the Developer transfers a portion of its obligations here- under as expressly provided for in Section 4 . 10 hereof, a default by either the Developer (as to the obligations not so transferred) or the transferee (as to the obligations so transferred) under this Agreement shall not constitute a default by the other for any pur- pose whatsoever, and Agency shall look solely to the defaulting party for the enforcement of its obligations under this Agreement. 6. 3 Institution of Legal Actions. After expiration of the applicable time periods set forth herein, in addition to any other rights or remedies, either party may (except as set forth in Sections 5. 3 , 6 . 6, and 6. 8 hereof) institute legal or equitable (including specific performance) action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the provisions of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, in any other appropriate court of the County, or in the Federal District Court in the Central District of California. In the event that either party is liable for damages to the other, such liability shall not extend to compensation for loss of future income, profits or assets. Notwithstanding anything in this Agreement to the con- trary, Developer agrees that any liability of the Agency, includ- ing, without limitation, for interest, attorneys fees and expenses incurred by the Developer, resulting from any breach of Agency's KKR42074 11-09-94 DRAFT DDIA -4 1- obligation to pay the Purchase Price shall not in any event exceed the sum of $5, 000, 000. 6.4 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 6. 5 Acceptance of Service of Process. In the event that any legal or equitable action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or Chairman of the Agency, or in such other manner as may be provided by law. In the event that any legal or equitable action is commenced by the Agency against the Developer, . service of process on the Developer shall be made by personal service upon an officer of a general partner of the Developer, or in such manner as may be provided by law, and shall be valid whether made within or without the State of California. 6 . 6 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement including, but not limited to Sections 5. 3 , 6. 6 and 6. 8hereof, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Notwithstanding anything in this Agreement to the contrary, in the event that the Developer fails to commence or complete construction as provided in Section 5. 7 (6) and (7) hereof KKR42074 11-09-94 DRAFT DDIA -4 Z_ within the time set forth therein, subject to the extensions of times as provided therein, the Agency' s sole and exclusive remedy with respect to Developer's failure to commence or complete said Minimum Improvements shall be the right, in the Agency's sole and absolute discretion, to terminate this Agreement in its entirety, including, without limitation, the Agency's obligation to purchase the Parking Rights. 6.7 Notice and Opportunity to Cure Default. Subject to the specific exceptions and conditions set forth in the particular sections of this_Agreement, if either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If a monetary default is not cured within 20 days after service of the notice of default, or if a non-monetary default is not commenced to be cured within 30 days after service of the notice of default, or if such non-monetary default is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the non-defaulting party may (subject to Sections 5. 3 , 6. 6 and 6. 8 hereof) thereafter (but not before) commence an action for damages against the defaulting party with respect to such default or commence an action for specific performance of the terms of this Agreement pertaining to such default. During any applicable period for cure provided in this Agreement, such party shall not be deemed in default hereunder. 6.8 Failure of Easement Purchase Transaction to Close. In the event that the Easement Purchase Transaction does not close KKR42074 11-09-94 DRAFT DDIA -4 3- due to the failure of any of the conditions set forth in Section 5.7 (a)hereof, and if Agency does not exercise its right to terminate this Agreement in the event of such failure, then the Developer may, in its discretion, elect to terminate this Agreement. In the event that Agency is otherwise obligated to pay the Purchase Price pursuant to the terms of this Agreement and the Agency fails to do so, then Developer may promptly thereafter either terminate this Agreement in its entirety or have this Agreement continue in full force and effect and pursue all remedies available to Developer under this Agreement, at law, or in equity, subject to the limitations set forth in Section 6. 3 hereof. 6 . 9 Excuse of Performance. Notwithstanding anything in this Agreement to the contrary, neither party shall have any 0 obligation or liability pursuant to this Agreement for such party's failure to perform any obligation herein required of such party, if such party is precluded from performing that obligation by the final decision of a court of competent jurisdiction or by prohibitive legislation. 6. 10 Effect of Termination of Development Agreement. No termination of the Development Agreement shall terminate this Agreement unless the cause for termination of the Development Agreement is likewise cause for termination of this Agreement, as provided herein. KKR42074 11-09-94 DRAFT DDIA -4 4- 6. 11 Termination if Development Agreement Expires or is Terminated. If the Development Agreement expires or is terminated prior to the Agency's payment of the Purchase Price and the Closing of the Easement Agreement Transaction, then the Developer shall have the right, in its sole and absolute discretion, to terminate this Agreement in its entirety without cost or liability to either the Agency or Developer. 7 . GENERAL PROVISIONS. 7 . 1 Notices Demands and Communications Between the Parties. Formal notices, demands, and communications between the Agency and the Developer shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, or by overnight courier or delivery service to the principal offices of the Agency and the Developer, as designated in this Section 7 . 1. Notices shall be deemed given upon receipt if the method of delivery is personal service or on the 3rd business day following deposit with the United States Postal Service. Such written notices, demands and communications may be sent in the same manner to such addresses as either party may from time to time designate by notice as prcvided in this Section 7 . 1. Notices shall be sent as follows: KKR42074 11-09-94 DRAFT DD1A -4 5- Irr' AGENCY: THE PALM DESERT REDEVELOPMENT AGENCY 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: Carlos L. Ortega Executive Director DEVELOPER: The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. John P. Boorn with a copy to: The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. James S. Bennett with a copy to: Pircher, Nichols & Meeks 1999 Avenue of the Stars, Suite 2600 Los Angeles, California 90067-6077 Attention: PN&M Notices (SAH) 7 . 2 Conflicts of Interest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or associa- tion in which he is, directly or indirectly, interested. Each party warrants to the other that it has not paid or given, and will not pay or give, any third party any money KKR42074 11-09-94 DRAFT DDIA -4 6- or other consideration for obtaining this Agreement other than normal costs of conducting business and costs for professional services such as attorneys, architects and engineers and other than the transaction between Developer and ACD2 described in the Recitals to this Agreement. 7. 3 Nonliability of Agency Officials and Employees. No member, official, employee or consultant of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or its successor, or on any obligations under the terms of this Agreement (except by reason of willful, wanton misconduct or malfeasance in office) . 7 . 4 Enforced Delay; Extensions of Time of Perform- ance. In addition to specific provisions of this Agreement and if not prohibited by specific provisions of this Agree- ment, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to .war, insurrection, strikes, lock-outs, labor disputes, riots, floods, earthquakes, water shortages, fires, casualties, Acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions, litigation or court orders in connection therewith, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplier, acts or failure to act KKR42074 11-09-94 DRAFT DDIA -4 7- of the other party, acts or failure to act of the City or any other public or governmental agency or entity or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. At the request of Developer, the Term of this Agreement shall also be extended for the period of the enforced delay. Notice by the party claiming such extension shall be sent to the other party within thirty (30) days of knowledge of the commencement of the cause. Times of performance under this Agreement may also be extended by mutual agreement in writing between the Agency and the Developer. Except as expressly otherwise provided in this i Agreement, the inability of Developer to obtain or maintain financing necessary for the development of the Property shall not be deemed an excuse for delay in performance or entitle Developer to an extension of time to perform or give rise to a right to extend the Term of this Agreement. 7 . 5 Replacement of Existing Businesses. It is the intent of the Developer and the Agency that the Developer attract new businesses to locate within the Project. For that reason, the parties agree that should the Developer or any successor-in-interest to the Developer sell or lease any portion of the Project to any Qualified Existing Business (as hereinafter defined) for the operation in the Project of KKR42074 11-09-94 DRAFT DDIA -4 8- substantially the same business as that being operated in its existing location, and if, at any time prior to or within six (6) months following the opening for business of the Qualified Existing Business at the Project, the Qualified Existing Business ceases operations at its existing location solely by reason of the Qualified Existing Business' relocation to the Project, then the Developer shall locate a Satisfactory Replacement Business (as hereinafter defined) which shall be willing to enter into a contractual commitment to the effect that the Satisfactory Replacement Business shall open for business within 6 months following the closure of the Qualified Existing Business at its existing location and otherwise upon economic terms and conditions not materially worse than those contained in the lease or other occupancy agreement to which the Qualified Existing Business was a party. All proposed relocations of Qualified Existing Businesses shall be submitted to the Agency for determination as to the applicability of this Section and for approval. For purposes of this Section 7 . 5, the following definitions shall apply: "Qualified Existing Business" means any existing business located within the City occupying 5, 000 square feet or more of gross leasable area if such business is not located on (or within one block of) El Paseo. If such business is located on (or KKR42074 11-09-94 DRAFT DDIA -4 9- 1 within one block of) E1 Paseo, then it shall be a "Qualified Existing Business" if it occupies 1, 000 square feet or more of gross leasable area. A business shall not be considered to be "existing" after it has ceased operation within the City for a period of six (6) months. "Satisfactory Replacement Business" means any business which is permitted by the City' s zoning ordinances at the location to be occupied and which is of a similar quality and character and fulfills the same function within the area ' s retail mix as the Qualified Existing Business, as determined and approved by the Agency in its sole and absolute discretion. The requirements of this Section 7 . 5 do not apply to any Qualified Existing Business which (a) leases its property pursuant to a lease which expires at any time prior to, or within 6 months after, the date that the Qualified Existing Business opens for business at the Project; or, (b) shall have sought to expand its premises but shall have been unable to do so as a result of unreasonable or undesirable requirements or restrictions placed on the Qualified Existing Business by the landlord, the lack of space an unacceptable layout, or other physical or economic constraints inherent in the existing KKR42074 -5 0- 11-09-94 DRAFT DDIA building or location; or, (c) is located within a retail shopping center in the City containing 500, 000 square feet or more of gross leasable area; or (d) vacates its existing space with the landlord's written consent or in accordance with contractual rights contained in the existing lease. This Section 7 . 5 touches and concerns the Property and is intended by the Developer and the Agency to be a covenant running with the Property, enforceable by the Agency (but not by any third party, including but not limited to the landlord of any Qualified Existing Business) against the Developer or any successor thereto as to the Property, other than a Mortgagee. This covenant shall only be for the benefit of the Agency and shall not benefit any third party, including but not limited to the landlord of any Qualified Existing Business. This covenant shall remain in effect until the later of (a) 800 of the first 100, 000 square feet of gross leasable area of the Project has been leased; or, (b) one year after any portion of such first 100, 000 square feet of gross leasable area opens for business; provided, however, that if any additional gross leasable area is added to the Project after such first 100, 000 square feet of gross leasable area, this Section 7 . 5 shall remain in effect as to such additional gross leasable area until 80% of such additional gross leasable area has been leased. 8 . ENTIRE AGREEMENT WAIVERS AND AMENDMENTS. KKR42074 11-09-94 DRAFT DDIA -5 1- This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all such matters. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate officers (or other appropriate representatives) of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate officers (or other appropriate representatives) of the Agency and the Developer. This Agreement and any provi- sions hereof may be amended by mutual written agreement by Developer and the Agency and such amendment shall not require the consent of any other fee owner, tenant, lessee, easement holder, licensee, Mortgagee, trustee, or any other person or 0 entity. 9 . MISCELLANEOUS. (a) Time is of the essence of this Agreement. If the last day of any time period stated herein falls on any Saturday, Sunday or legal holiday of the State of California, the period shall be extended to include the next day which is not a Saturday, Sunday or such holiday. (b) If any portion of this Agreement is held to be illegal, void or unenforceable, all other provisions hereof shall remain in full force and effect to the extent the KKR42074 11-09-94 DRAFT DD1A -5 2 resulting Agreement preserves the material economic terms of this Agreement. (c) Except as otherwise expressly provided by this Agreement, approvals and consents required of either party hereunder shall not be unreasonably withheld and any approval or disapproval shall be given within the times set forth in this Agreement, or if no time is given, within thirty (30) days of request therefor. Unless otherwise expressly provided for in this Agreement, the failure either party to approve or disapprove within such time limits shall be deemed an approval. (d) Nothing in this Agreement shall be deemed or construed to create the relationship of principal and agent, or of partnership, association or joint venture between the parties to this Agreement. (e) Both parties agree to act reasonably and to reasonably cooperate in performing their obligations pursuant to this Agreement. Except as otherwise expressly provided by phis Agreement, when exercising their discretion as to approvals and other acts hereunder, each party agrees to act reasonably in so exercising their respective discretion. Each party hereto covenants to take such other acts and execute such additional documents which are reasonably necessary to effectuate the intent and provisions of this Agreement and the Development Agreement. KKR42074 11-09-94 DRAFT DDIA -5 3- 10. ESTOPPEL CERTIFICATES. Either the Agency or the Developer may, at any time, and from time to time, deliver written notice to the other requesting that it certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the requesting party is not in default in the perform- ance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. Agency acknowledges that a certificate hereunder may be relied upon by transferees, assignees and lessees of Developer and by Mortgagees. 11. AGREEMENT TO COOPERATE. The Agency and the . Developer acknowledge that Mortgagees, and other purchasers, transferees and lessees of the Developer's interest therein (and which are not yet iden- tified) may require that they have the right to review this Agreement. The Agency agrees that it will reasonably cooper- ate with such Mortgagees, purchasers, transferees and lessees by providing such letters of understanding, implementing memorandum or other instruments with respect to this Agreement KKR42074 11-09-94 DRAFT DDIA -5 4- as they may reasonably request in the process of such review; provided, however, the Agency shall not be required to provide such letters of understanding, implementing memorandum or other instruments if it reasonably believes that the effect would be to materially adversely affect its rights or interests hereunder. 12 . MORTGAGEE PROTECTION 12 . 1 Mortgagee Protection; Certain Rights of Cure. Nothing contained herein shall limit or interfere with the lien of or the remedies of any Mortgagee and no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage. 12 . 2 Security Financing; Mortgagee Not Obligated to Construct. (a) No Mortgagee with respect to the Property shall in any way be obligated by the provisions of this Agreement to construct or complete the Minimum Improvements, or to guaran- tee such construction or compliance unless such Mortgagee shall have expressly assumed such obligations; provided, how- ever, that if the Mortgagee elects not to construct or cause the construction of the Minimum Improvements, then the Agency may, in its sole and absolute discretion, and in lieu of any other rights or remedies available to the Agency under this Agreement, at law, or in equity, terminate this Agreement KKR42074 11-09-94 DRAFT DDIA -5 5- �rrra including, without limitation, the Agency's obligation to purchase the Parking Rights. (b) Mortgagee Protection. The parties hereto agree that this Agreement, including, but not limited to the provisions of Section 4 . 10 (Prohibition Against Transfer) , shall not prevent or limit Developer, in any manner, at Developer' s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any Mort- gage, nor shall it impair or restrict in any manner the exercise of any remedies thereunder, including but not limited to, foreclosure or the taking of a deed in lieu of foreclosure. Agency acknowledges that Mortgagees may require certain interpretations of and modifications to this Agreement and Agency agrees upon request, from time to time, to meet with Developer and representatives of Mortgagees to negotiate in good faith any such request for interpretation or modification (but Agency shall not be obligated to take any other action with respect thereto) . Any Mortgagee of the .Property shall be entitled to the following rights and privileges: (i) Neither entering into this Agreement, nor a breach of this Agreement, shall defeat, render invalid, diminish or impair the lien of any Mortgage on the Property. (ii) Except as hereinafter provided, any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of any Mortgage or deed KKR42074 11-09-94 DRAFT DD1A —5 6— in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. However, notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's obligations or other covenants of Developer hereunder, or to guarantee such performance. However, to the extent that the performance of any such obligation or covenant by Developer is a condition precedent to the performance of any act by the Agency, the Agency shall have no obligation to perform such act hereunder unless and until the Mortgagee performs such obligation or covenant. Although a Mortgagee is not obligated to perform the obligations and covenants of Developer hereunder, if the Mortgagee elects to so perform, such performance shall be in full accordance with the terms of this Agreement. Any sale, transfer or assignment of any rights or obligation under this Agreement with respect to the Property by any Mortgagee shall not be subject to the provisions of Section 4 . 10 hereof. 12 . 3 Notice of Default; Right to Cure. If any Mortgagee files with the City Clerk a written notice requesting a copy of any notice of default given Developer hereunder and specifying the address for delivery thereof, then Agency shall deliver to such Mortgagee, concurrently with delivery thereof to Developer, any notice given to Developer with respect to any claim of Agency that Developer has not complied with the terms hereof or is otherwise in default KKR42074 11-09-94 DRAFT DDIA -5 7- 'tier+►` hereunder. The failure of the Agency to provide such notice, however, shall not impair or defeat the Agency' s exercise of its rights or remedies under this Agreement or otherwise; subject to the rights of a Mortgagee pursuant to this Section 12 . Each such Mortgagee shall have the right (but not the obligation) for a period of 60 days after receipt of such notice from Agency to cure or remedy, or to commence to cure or remedy, the claim of default or noncompliance set forth in the Agency' s notice. If any such default or noncompliance cannot, with diligence, be remedied or cured within such 60 day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such default or noncompliance if such Mortgagee commences to remedy or cure within such 60 day period, and thereafter diligently pursues and completes such remedy or cure. Notwithstanding the foregoing, if the default or noncompliance is of a nature which can only be cured by such Mortgagee by or upon obtaining possession of the Property, such Mortgagee shall be deemed to have remedied or cured such default or noncompliance if such Mortgagee shall, within such 60 day period, commence efforts to obtain possession of the Property and carry the same forward with diligence and continuity through implementation of foreclosure, appointment of a receiver or otherwise, and shall thereafter remedy or cure or commence to remedy or cure the default or noncompliance within sixty (60) days after obtaining possession. KKR42074 11-09-94 DRAFT DDIA -5 8 12 .4 Bankruptcy. Notwithstanding the provisions of Section 12. 2 above, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof to obtain possession of the Property by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Developer, the Mortgagee shall for the purposes hereof be deemed to be proceeding with diligence and continuity to obtain possession of the Property during the period of such prohibition if the Mortgagee is proceeding diligently to terminate such prohibition. 13 . TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY ' DATE OF AGREEMENT. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within 20 days after this Agreement is signed by the Developer. If this Agreement is not so authorized, executed and delivered by Agency, then, upon notice by Developer to Agency to such effect, it shall be null and void and may not thereafter be authorized, executed or delivered. The date of this Agreement shall be the date first above written. KKR42074 11-09-94 DRAFT DDIA -5 9- 14. AGREEMENT MAY BE EXECUTED IN COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but such counterparts taken together shall constitute one Agreement. KKR42074 11-09-94 DRAFT DD1A -60- AGENCY: PALM DESERT REDEVELOPMENT AGENCY By: Carlos Ortega Executive Director DEVELOPER: THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership By: The Boorn Bennett Limited Partnership, an Ohio limited partnership, its general partner By: Boorn, Inc. , an Ohio corporation , its general partner By: John P. Boorn KKR42074 11-09-94 DRAFT DD1A -6 1- EXHIBIT "A" Redevelopment Plan i KKR42074 _ 11-09-94 DRAFT DDIA -1 EXHIBIT "B" The Property The following real property in the City of Palm Desert, County of Riverside, State of California, described as follows: Parcels 1 and 2 of Parcel Map 4655, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 7 , Page 42 of Parcel Maps, in the Office of the County Recorder of said County. KKR42074 11-09-94 DRAFT DDIA -1- EXHIBIT "C" Development Agreement [To Be Attached By Agency] KKR42074 11-09-94 DRAFT DDIA -1 EXHIBIT "D" [Reserved] i KKR42074 11-09-94 DRAFT DDIA -1- EXHIBIT "E" Easement Agreement [Subject to substantial revision] Recording Requested by and When Recorded Return to: Documentary Transfer Tax: $ None Revenue and Taxation Code 11922 Easement Agreement This Easement Agreement (this "Agreement") is made and entered into as of the day of 199_ by and between THE PALM DESERT REDEVELOPMENT AGENCY (the "Agency") and The Madison Realty Partnership, Limited Partnership, a Delaware limited partnership (the "Developer") . RECITALS WHEREAS, Developer is the owner of that certain real property (the "Property") located in the City of Palm Desert, California and more completely described in Exhibit A attached hereto and hereby made a part hereof; WHEREAS, Developer has developed a shopping center (the "Shopping Center") upon the Property. The current configuration of the Shopping Center is approximately as shown on the site plan (the "Site Plan") attached hereto as Exhibit B and hereby made a part hereof; WHEREAS, Agency desires to acquire certain rights for public parking purposes over a portion (the "Public Parking Area") of the parking areas (the "Parking Areas") located from time to time on the Property; WHEREAS, Developer desires to convey such rights to Agency in accordance with the terms and conditions contained herein; and WHEREAS, Agency and Developer desire to agree on certain other matters with respect to the Parking Areas. KKR42074 _ 11-09-94 DRAFT DDIA -1 *00 NOW, THEREFORE, in consideration of the foregoing, the covenants and promises set forth herein, and other good and valuable consideration (including but not limited to the payment by Agency to Developer, pursuant to that certain Amended and Restated Disposition, Development and Implementation Agreement between Developer and Agency dated , 1994, of the "Purchase Price" , as defined therein) , Developer and Agency agree as follows: 1. Easement/Control Over Public Parking Area. Developer hereby grants and conveys to Agency a nonexclusive easement (the "Easement") over the Public Parking Area for the Term (as defined in Paragraph 5 (Term) ) for Public Parking purposes. For the purposes of this Agreement, "Public Parking" shall mean parking which is fully accessible to all members of the public, without limitation as to their purpose for parking on the Public Parking Area or their destination, except for limitations set forth in that certain Parking Management Plan (the "Parking Management Plan") attached hereto as Exhibit C, any modification to the Parking Management Plan that may be implemented by Developer, subject to the written approval of Agency, and any other limitations, rules and regulations that may be established by Developer, subject to the written approval of Agency. The determination of the hours of operation of the Public Parking Area shall remain solely with Developer, except that Agency shall have the right to approve any closure of the Public Parking Area prior to the closure of the Parking Areas other than the Public Parking Area (the "Private Parking Area") . 2 . Character of Easement. The Easement granted herein is a nonexclusive easement in gross, to be held and enjoyed by Agency and its successors and assigns, in common with Developer and the occupants of the Shopping Center and their invitees. 3 . Location of the Public Parking Area. The Public Parking Area shall contain two hundred (200) spaces and shall initially be located as shown on the Site Plan. Developer shall have the right to relocate the Public Parking Area from time to time, provided that (a) Developer shall have given at least twenty (20) days prior written notice of the new location, (b) the Public Parking Area is not located in more than two (2) separate locations on the Property, and (c) Developer shall have provided an access easement to Agency as to any portion of the Public Parking Area which is not contiguous to a public street. Developer shall also have the right, subject to Paragraph 7 (Obstructions) , to reconfigure KKR42074 11-09-94 DRAFT DDIA -2- the Shopping Center, including but not limited to the right to change the location of, add or subtract buildings, and the right (subject to the foregoing sentence) to change the size and layout of the Parking Areas and the parking spaces thereon. 4 . Term. The term (the "Term") of this Agreement shall commence on the date hereof and shall expire on the later to occur of (a) twenty-five (25) years after the date hereof or (b) the date on which the Property is no longer being operated as a Shopping Center in substantially the configuration of the Shopping Center as of the expiration of such twenty-five (25) year period, but in no event longer than forty (40) years after the date hereof. Notwithstanding the foregoing, Developer shall have the right to terminate this Agreement, at any time after ten (10) years after the date hereof, by sending a notice of such termination (the "Early Termination Notice") to Agency, which Early Termination Notice shall set forth the effective date (the "Effective Date") of such early termination (which date shall be at least thirty [30] days after the date of the Early Termination Notice) and shall state that Developer no longer intends to operate the Property as a Shopping Center in substantially the configuration of the Shopping Center as it was initially constructed. On or before the Effective Date of such early termination, Developer shall pay to Agency an amount calculated by multiplying the Purchase Price paid by Agency to Developer on or about the date hereof by a fraction, the numerator of which is the number of years J (or fractions thereof) from and after the Effective Date to the expiration of the twenty-fifth (25th) year after the date hereof and the denominator of which is twenty-five (25) . Upon the expiration or earlier termination of this Agreement, this Agreement shall automatically terminate without further action by the parties hereto, but either party shall, promptly after receiving a request therefor from the other after the expiration or earlier termination of this Agreement, execute And deliver a termination agreement, in recordable form and otherwise in form reasonably satisfactory to both parties. Upon the expiration or earlier termination of this Agreement, the Parking Management Plan shall automatically terminate without further action by the parties hereto, but either party shall, promptly after receiving a request therefor from the other after the expiration or earlier termination of this Agreement, execute and deliver a termination agreement, in form reasonably satisfactory to both parties, with respect to the Parking Management Plan. 5. Maintenance of the Parking Areas. During the Term, Developer shall maintain, or cause to be maintained, in good repair the Parking Areas and all necessary landscaping, lighting, paving, directional signage and other appurtenances KKR42074 11-09-94 DRAFT DDIA -3- necessary to the maintenance of the Parking Areas. All maintenance of the Parking Areas shall be done in accordance with all applicable Federal, State and local statutes, ordinances, rules, standards and regulations. This paragraph shall not be construed to require Developer to restore any Parking Areas damaged by fire or other casualty, but Developer shall make any decision relating to such restoration in a manner that does not discriminate against the Public Parking Area. 6. Bodily Injury and Property Damage Insurance. During the Term, Developer shall furnish, or shall cause to be furnished, to Agency promptly after Agency's request therefor certificates of public liability insurance in the amount of One Million Dollars ($1, 000, 000) combined single limit, naming Agency as an additional insured. Said insurance shall cover comprehensive general liability including, but not limited to, contractual liability; acts of subcontractors; premises- operations; explosion, collapse and underground hazards, if applicable; broad form property damage, personal injury including libel, slander and false arrest. Developer shall also furnish, or shall cause to be furnished, to Agency promptly after Agency' s request therefor proof of comprehensive automobile liability insurance covering owned, non-owned and hired vehicles, combined single limit in the amount of One Million Dollars ($1, 000, 000) each occurrence and proof of workers compensation insurance. Any and all insurance policies required hereunder shall be obtained and maintained at all times from insurance companies admitted in the State of California and rated at least B+;VIII in Best's Insurance Guide. All said insurance polices shall provide that they may not be canceled or the limits of liability reduced below those required hereunder unless Agency receives written notice of cancellation or reduction at least thirty (30) calendar days (or such lesser number of days as may be customary in the insurance industry from time to time) prior to the effective date of cancellation. Any and all insurance obtained by Developer hereunder shall be primary to any and all insurance which Agency may otherwise carry, including self insurance. Any insurance policies governing the Public Parking Area as obtained by Agency shall not be transferred from Agency to Developer. 7 . Obstructions. Although the Easement shall not encumber the Private Parking Area, Developer agrees that it will not construct any fence or barrier between the Public Parking Area and the Private Parking Area which materially restricts access between the Public Parking Area and the Private Parking Area. This paragraph shall not be construed to prevent Developer or others from constructing buildings or KKR42074 11-09-94 DRAFT DDIA -4- other improvements from time to time upon the Parking Areas, provided that such access is not materially restricted. 8. Entire Agreement. This Agreement contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed. Any oral representations or modifications concerning this Agreement shall be of no force and effect. This Agreement may be amended only by a subsequent document in writing, signed by the party to be charged. 9 . Approvals. Approvals and consents required of Agency hereunder shall not be unreasonably withheld, and Agency's approval or disapproval shall be given within the times set forth in this Agreement, or if no time is given, within thirty (30) days after request therefor. The failure of Agency to approve or disapprove within such time limits shall be deemed an approval. 10. Attorney' s Fees. In the event of any controversy, claim, dispute, action or proceeding relating to this Agreement or any breach thereof, the prevailing party shall be entitled to recover from the losing party, in addition to all other relief available to it, its reasonable attorneys ' fees and costs. 11. Binding Effect. This instrument shall be binding on and shall inure to the benefit of Developer and Agency, and i their respective successors, assigns, heirs, executors and administrators. Notwithstanding the foregoing, the transferee or assignee of any of the rights and interests of Developer shall have no duty or obligation to perform any affirmative covenants of Developer under this Agreement, unless such affirmative covenants are expressly assumed in connection with the conveyance of such rights and interests. In the event such affirmative covenants are so assumed by any transferee or assignee, no subsequent failure by such transferee or assignee (or any subsequent transferee or assignee) to perform or comply with such affirmative covenants shall be deemed a default by Developer hereunder and, similarly, no failure of Developer to perform or comply with its affirmative covenants KKR42074 11-09-94 DRAFT DDIA -5 which have not been so transferred or assigned shall consti- tute a default hereunder with respect to such transferee or assignee (or subsequent transferee or assignee) . IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day first above written. AGENCY: PALM DESERT REDEVELOPMENT AGENCY By: Carlos Ortega Executive Director DEVELOPER: THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership i By: The Boorn Bennett Limited Partnership, an Ohio limited partnership, its general partner By: Boorn, Inc. , an Ohio corporation, its general partner By: John P. Boorn [ATTACH NOTARY ACKNOWLEDGMENTS) KKR42074 11-09-94 DRAFT DDIA -6- `fir✓ EXHIBIT "F" [Reserved) KKR42074 11-09-94 DRAFT DD1A -1- ----------------------------------------------------------- (Space above for Recorder's Use Only) AMENDED AND RESTATED DEVELOPMENT AGREEMENT Between THE CITY OF PALM DESERT, CALIFORNIA and THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP Dated: , 1994 KKR42075 11/9/94 Draft Dev. Agreement TABLE OF CONTENTS Page(s) AMENDED AND RESTATED DEVELOPMENT AGREEMENT . . . . . . 1 RECITALS . . . . . . . . . . . . . . . . . . . . . . . 1 1. Definitions . . . . . . . . . . . . . . . . . 4 1. 1 Defined Terms . . . . . . . . . . . . . 4 1.2 Agency . . . . . . . . . . . . 4 1. 3 Building Ordinances . . . . . . . . 4 1. 4 Development Approvals . . . . . . . . . 5 1. 5 DDIA. . . . . . . . . . . . . . . . . . 5 1. 6 Enacting Ordinance . . . . . . . . . . . 5 1.7 Exactions . . . . . . 5 1.8 Existing Land Use Ordinances . . . . 6 1. 9 Reserved . . . . . . . . . . . . . . . . 6 1. 10 Land Use Ordinances . . . . . . . . 6 1. 11 Mortgage . . . . . . . . . . . . . . . . . 7 1. 12 Precise Plan. . . . . . . . . . . . . . 8 1. 13 Processing Fees . . . . . . . . . . . . 8 1. 14 Project . . . . . . . . . . . . . . . . 8 1. 15 Property . . . . . . . . . . . . . . . . 9 1. 16 Reservations of Authority . . . . . . . 9 1. 17 Certain Other Terms . . . . . . . . . . 9 J 2 . Effective Date; Term; Amendment . . . . . . . 9 2 . 1 Effective Date . . . . . . . . . . . . . 9 2 . 2 Term . . . . . . . . . . . . . . . . . . 9 2 . 3 Amendment 10 3 . General Development of the Project . . . . . 10 3 . 1 Project . . . . . . . . . . . . . . . 10 3 .2 Project Timing . . . . . . . . . . . . 11 3 . 3 Building Permits and Other Approvals and Permits . . . . . . . . . 11 3 . 4 Procedures; Limitations on Exactions . . 12 3 . 5 Effect of Agreement . . . . . . . . . . 12 3 . 6 Operating Memoranda . . . . . . . . . . 15 3 .7 Limitations, Reservations of Authority and Exceptions . . . . . . . 16 4 . Specific Criteria Applicable to Development of the Project . . . . . . . . . 18 4 . 1 Applicable Ordinances . . . . . . . . . 18 4 . 2 Amendment to Applicable Ordinances . . . 19 4 . 3 Easements; Abandonments . . . . . . . . 19 KKR42075 11/9/94 Draft Dev. Agreement -1- 5. Public Benefits . . . . . . . . . . . . . . . 20 5. 1 [Reserved] . . . . . . . . . . . . . . . 20 5.2 Palm Desert Redevelopment Agency . . . . 20 5. 3 [Reserved] . . . . . . . . . . . . . . . 20 5. 4 [Reserved. ] . . . . . . . . . . . . . . 20 6. Review for Compliance . . . . . . . . . . . . 20 6. 1 Periodic Review . . . . . . . . . . . 20 6. 2 Special Review . . . . . . . . . . . 21 6. 3 Procedure . . . . . . . . . . . . . . 22 6. 4 Proceedings Upon Termination . . . . . . 23 6. 5 Hearing on Termination . . . . . . . . . 23 6. 6 Certificate of Agreement Compliance 24 7. Permitted Delays; Supersedure by Subsequent Laws . . . . . . . . . . . . . . . 25 7. 1 Permitted Delays . . . . . . . . . . . . 25 7 . 2 Supersedure of Subsequent Laws or Judicial Action; Termination of the Development Agreement . . . . . . . 27 8 . DEFAULT AND REMEDIES . . . . . . . . . . . . 28 8 . 1 Remedies in General . . . . . . . . . . 28 8 . 2 Specific Performance . . . . . . . . . . 29 8 . 3 Release . . . . . . . . . . . . . . . . 30 8 . 4 Termination for Default of Developer 30 8. 5 Termination of Agreement for Default of City . . . . . . . . . . . . 31 8 . 6 Effect of Termination . . . . . . . . . 32 8 . 7 Effect of Termination of DDIA . . . . . . 32 9 . Third Party Litigation . . . . . . . . . . . 33 9. 1 General Plan Litigation . . . . . . . . 33 9 . 2 [Reserved] . . . . . . . . . . . . . . . 33 9 . 3 Indemnity . . . . . . . . . . . . . . . 33 9 . 4 Environmental Contamination . . . . . . 34 9. 5 City to. Approve Counsel . . . . . . . . 34 9 . 6 Accept Reasonable Good Faith Settlement 35 9. 7 Survival . . . . . . . . . . . . . . . . 35 10. Mortgagee Protection; Certain Rights of Cure 36 10. 1 Mortgagee Not Obligated . . . . . . . . 36 10. 2 Notice of Default; Right to Cure . . . . 36 10. 3 Bankruptcy . . . . . . . . . . . . . . . 37 10. 4 Estoppel Certificates . . . . . . . . . 38 11. Transfers and Assignments; Effect of Agreement on Title . . . . . . . . . . . . . 38 11. 1 Rights and Interests Appurtenant . . . . 39 11. 2 Transfer . . . . . . . . . . . . . . . . 39 KKR42075 11/9/94 Draft Dev. Agreement 11. 3 Termination of Agreement with Respect to Property . . . . . . . . . . 45 11.4 Covenants Run with Land . . . . . . . . 46 12. Notices . . . . . . . . . . . . . . . . . . . 47 13. Miscellaneous . . . . . . . . . . . . . . . 48 13 . 1 Relationship of Parties . . . . . . . . 48 13 .2 Consents . . . . . . . . . . . . . 48 13 . 3 Not a Public Dedication . . . . . . . . 49 13 . 4 Severability . . . . . . . . . . . . . . 50 13 . 5 Exhibits . . . . . . . . . . . . . . . . 50 13 . 6 Entire Agreement . . . . . . . . . . 50 13 .7 Governing Law; Construction of Agreement . . . . . . . . . . . . . . . 50 13 .8 Signature Pages . . . . . . . . . . . . 51 13 .9 Time . . . . . . . . . . . . . . . . 51 • KKR42075 11/9/94 Draft Dev. Agreement LIST OF EXHIBITS Exhibit Designation Description A The Project B The Property C The Phasing Schedule D The Exactions E [Reserved] F The Disposition, Development and Implementation Agreement i KKR42075 11/9/94 Draft Dev. Agreement -i v- AMENDED AND RESTATED DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of this day of , 1994, by and between the City of Palm Desert, California, a municipal corporation organized and existing under the laws of the State of California ("City") , and The Madison Realty Partnership, Limited Partnership, a Delaware limited partnership, ("Developer") . RECITALS This Agreement is entered into on the basis of the following facts, understandings and intentions of the parties: A. Government Code Sections 65864 through 65869.5 inclusive (the "Development Agreement Legislation") authorize City to enter into development agreements in connection with the development of real property within its jurisdiction. On August 11, 1983 , City enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance") ' establishing the procedures and requirements for the consideration of development agreements thereunder pursuant to the Development Agreement Legislation. B. The Developer is the holder of a legal or equitable interest in the Property (as defined in Section 1. 15 below) and is entitled to have filed the application for and to enter into this Agreement. The Developer has entered into that certain Option Agreement and Joint Escrow Instructions (as heretofore and KKR42075 11/9/94 Draft Dev. Agreement -1- hereafter amended, the "Purchase Agreement") with respect to the Property dated as of May 20, 1994, between Developer, as purchaser and ACD2 , a California corporation (the successor in interest to Ahmanson Commercial Development Company ("ACD") , a California . corporation, which was the "Developer" of the Property under the Development Agreement (as defined below) ) , as seller. C. The City and ACD have previously entered into that certain Development Agreement dated May 1, 1990 and recorded in the Office of the County Recorder of Riverside County, California on June 20, 1990 as Instrument No. 227140 (the "Development Agreement") , which Development Agreement relates in part to and benefits the Property and the Project (as defined in Section 1. 14 hereof) and by which the City has acknowledged that the development of the Property and the Project as set forth therein is consistent with and in furtherance of the development goals and policies of the City. As of the Effective Date (as hereinafter defined) , the terms and conditions of the Development Agreement which are not included in this Agreement shall have no force or effect upon, and shall not be binding upon, Developer or the Property; provided, however, that in any event the Development Agreement shall remain in full force and effect with respect to all properties, other than the Property, which are subject thereto. D. Pursuant to the Purchase Agreement, Developer agreed to purchase the Property from ACD 2 , and also agreed to assume and accept all of the obligations, duties, rights and interests which relate to the Property under the Development KKR42075 11/9/94 Draft Dev. Agreement -2- Agreement, as such obligations, duties, rights and interests are hereinafter set forth in this Agreement. E. The Project consists of the development of the Property. The Project will require a major investment by the Developer in public facilities and a substantial investment by the Developer in on-site and off-site improvements. The Project has been analyzed and reviewed by the City in light of the land use standards and policies embodied in the Existing Land Use Ordinances (as defined in Section 1.8 below) . F. The City has determined that the development of the Project as contemplated by this Agreement is consistent with and in furtherance of the development goals and policies of the City as set forth in the City's General Plan and the existing Palm Desert Commercial Core Area Specific Plan ("Specific Plan") initially 0 adopted by the City on July 23, 1987 (and as thereafter amended) , and the objectives, policies, general land use and development programs set forth therein. G. City has determined that the execution of this Agreement by the City and the Developer will further the goals and objectives of the City's land use planning policies by, among other things, eliminating uncertainty in planning for and securing orderly development of the Project, so that adequate long-term plans regarding the provision of necessary infrastructure can be developed and implemented, and ensuring the maximum effective utilization of resources within the City at the least feasible economic cost to its citizens. The benefits conferred on City by Developer herein will (i) facilitate the installation of certain KKR42075 11/9/94 Draft Dev. Agreement -3- vital public improvements; (ii) improve traffic circulation patterns within the City; and (iii) further the development objectives of the City in an orderly manner, all of which will significantly promote the health, safety and welfare of the residents of the City. In exchange for these benefits to the City, Developer desires to receive the assurance that it may proceed with the Project in accordance with the Existing Land Use Ordinances (as defined in Sections 1. 8 below) and at a rate of development of its choosing, subject to the terms and conditions contained in this Agreement. H. In order to effectuate the foregoing, the parties desire to enter into this Agreement in order to amend and restate in its entirety the Development Agreement with respect to the Property. i NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Definitions. 1. 1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1. 2 Agency. The Palm Desert Redevelopment Agency 1. 3 Building Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the Property, in effect from time to time KKR42075 11/9/94 Draft Dev. Agreement -4- that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.4 Development Approvals. All permits and other entitlements issued or approved by City for development and/or use of the Property including, but not limited to: (a) General plan amendment; (b) Specific plans and specific plan amendments; (c) Zoning; (d) Tentative and final subdivision and parcel maps; (e) Conditional use permits; (f) Design review approvals; (g) Grading and building permits; (h) Precise Plans. "Development Approvals" specifically do not include this Agreement. 1. 5 DDIA. That certain Amended and Restated Disposition, Development and Implementation Agreement of even date herewith, between the Agency and the Developer and pertaining to the Project, and attached hereto as Exhibit F. 1. 6 Enacting Ordinance. Ordinance No. enacted by the City Council on , 1994 , approving this Agreement. 1.7 Exactions. All exactions, in-lieu fees or payments, assessments, dedication or reservation requirements, obligations for on-site or off-site improvements, construction requirements for public improvements, facilities, or services called for in connection with the development of or construction on the Property, whether such requirements constitute subdivision improvements, any KKR42075 11/9/94 Draft Dev. Agreement -5- conditions of approval relating to any fees, charges, or dedica- tions imposed by the Subdivision Map Act or any implementing local ordinance or any Development Approval, mitigation measures in connection with environmental review of any project, or impositions made under any applicable ordinance or in order to make a project approval consistent with the City's General Plan. Exactions do not include Processing Fees. 1. 8 Existing Land Use Ordinances. The Land Use Ordinances in effect as of May 1, 1990. 1. 9 Reserved. 1. 10 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of City, (including, without limitation, the City General Plan and the Specific Plan) legally adopted in accordance with all applicable laws, governing the development of the Property, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes and -all Exactions, the timing of development, and the design, improvement and construction and initial occupancy standards and specifications applicable to the development of the Property as they may be modified by the Development Approvals. "Land Use Ordinances" do not include any City resolution, code, rule, regulation or official policy governing: (a) The conduct of businesses, professions, and occupations; KKR42075 11/9/94 Draft Dev. Agreement -6- (b) Other than as provided in this Agreement, taxes and assessments of general application upon all residents of the City, provided that the taxes and assessments are not imposed for the purpose of taxing the right, power or privilege of developing or improving land (e.g. excise tax) , or to directly finance the construction or maintenance of any public improvement in respect of which Developer is paying any fee or providing any improvement pursuant to this Agreement or the DDIA hereof; or (c) The control and abatement of nuisances; or (d) The granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (e) The exercise of the power of eminent domain. 1. 11 Mortgage. Any mortgage, deed of trust, sale and leaseback or other form of conveyance or encumbrance for financing for the purpose of securing loans of funds to be used for financing the direct and indirect costs (including, without limitation, financing costs, interest and commissions, and the refinancing of any equity investment by Developer) of acquiring, designing, constructing, developing, leasing and operating the Property or the improvements to be constructed thereon, or any portion thereof, pursuant to this Agreement, including any collateral assignment of this Agreement to a Mortgagee (as hereinafter defined) . As used herein, "Mortgage" includes all commercially reasonable modes of financing real estate acquisition, construction, or land development. KKR42075 11/9/94 Draft Dev. Agreement -7- 1. 12 Precise Plan. The plan of development for the Property, consistent with this Agreement and Exhibit A attached hereto, which shall be submitted by Developer prior to the commencement of construction on the Property for the City's approval in accordance with the terms of this Agreement. The Precise Plan shall comply with City Municipal Code. section 25.73 . 011 and shall include such information as may be reasonably required by the City in accordance with the City's requirements for precise plans for projects of a similar type as the Project. 1. 13 Processing Fees. The normal and customary application, filing, plan check, land use approval, design review, building and other similar permit entitlement, and inspection fees; which fees are charged to reimburse the City's expenses attributable to such applications, processing, permitting, review i and inspections, and which are in force and effect on a general basis at such time as said approvals, permits, review, inspections or entitlements are granted or conducted by City. 1. 14 Project. The commercial/retail development and associated amenities, and on-site and off-site improvements, as described in Exhibit A, intended to be constructed on the Property, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement. 1. 15 Property. That real property which is described in Exhibit B. 1. 16 Reservations of Authority. The rights and authority excepted from the assurances and rights provided to Developer under KKR42075 11/9/94 Draft Dev. Agreement -8- *400 this Agreement and expressly reserved to City underSections 3.5 and 3.7 of this Agreement. 1. 17 Certain Other Terms. Certain other terms shall have the meanings set forth for such terms in this Agreement. 2. Effective Date; Term; Amendment. 2 . 1 Effective Date. This Agreement has been entered into by the parties as of the date and year first above written (the "Execution Date") This Agreement shall become effective on the date on which the Developer acquires the Property from ACD2 pursuant to the Purchase Agreement (the *"Effective Date") . Notwithstanding the foregoing, if the Effective Date shall not have occurred prior to the date which is six (6) months from the Execution Date, then this Agreement shall be null and void, ab initio, and shall terminate automatically. In such event, the Development Agreement shall remain in full force and effect and the Property shall continue to be subject to the benefits and obligations of the Development Agreement as they existed on the Execution Date. 2 . 2 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on May 1, 2000, unless sooner terminated or extended as hereinafter provided. 2 . 3 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits. Any amendment to this Agreement or the Exhibits as provided herein shall be effected only upon compliance with the KKR42075 11/9/94 Draft Dev. Agreement -9- procedures for amendment, if any, required by the Development Agreement Legislation and the Development Agreement Ordinance. The City shall, after any such amendment takes effect, cause an appropriate notice of such amendment to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne equally by the parties to this Agreement. 3 . General Development of the Proiect. 3 . 1 Project. (a) The Project is defined and described in Exhibit A, which specifies for the purposes of this Agreement all of the following aspects of the Project: (i) proposed uses of the Property, (ii) the maximum height and square footage of buildings to be constructed on the Property, (iii) density and intensity of i use of the Property, (iv) requirements for the construction or provision of on-site and off-site improvements; and (v) require- ments for reservation or dedication of portions of the Property for public purposes. (b) Except as otherwise expressly provided in Exhibit A and further provided in Section 4 . 2 below, Developer shall have the right to develop the Project in accordance with, and development of the Project during the Term shall be governed by, the Existing Land Use Ordinances, subject to the Reservations of Authority. However, Developer shall not be obligated to develop the Project. 3 . 2 Proiect Timing. The parties acknowledge that Developer cannot at this time predict when or the rate at which the KKR42075 11/9/94 Draft Dev. Agreement -1 0- Project will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereto acknowledge and expressly agree that Developer is hereby granted by the City the vested and guaranteed right to develop the Project in such manner and at such rate and at such times as Developer deems appropriate within the exercise of its sole subjective business judgment. Therefore, City expressly agrees that Developer shall be entitled to apply for maps, building permits, occupancy certifi- cates and other entitlement for its use at any time, provided that such application is made in accordance with the Existing Land Use Ordinances, subject to the Reservations of Authority, and that the development and/or construction of the Project contemplated or authorized by such maps, building permits, occupancy permits and other entitlement is otherwise in conformity therewith. 3 . 3 Building Permits and Other Approvals and Permits. Subject to (a) Developer' s compliance with this Agreement, the Existing Land Use Ordinances and the Building Ordinances, and (b) payment of Processing Fees, City shall process and issue to Developer promptly upon application therefor all necessary use permits, building permits, occupancy certificates, and other required permits for the construction, use and occupancy of the Project, or any portion thereof, as applied for, including connection to all utility systems under the City's jurisdiction and control (to the extent that such connections are physically KKR42075 11/9/94 Draft Dev. Agreement feasible and that such utility systems are capable of adequately servicing the Project) . 3.4 Procedures; Limitations on Exactions. The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Agreement and the Exhibits hereto, and to the extent not incon- sistent therewith, the Existing Land Use Ordinances (subject to Reservations of Authority) , but the procedures for processing applications for such permits or approvals (including the Processing Fees) shall be governed by such ordinances and regula- tions as may then be applicable. Notwithstanding the foregoing, or anything to the contrary otherwise contained herein, there shall not, except as otherwise specifically provided herein, be imposed i upon the Project any Exactions other than those set forth in Exhibit D, nor shall the fees and charges constituting Exactions exceed those set forth in Exhibit D (to the extent set forth in Exhibit D) or those charged pursuant to the Existing Land Use Ordinances (to. the extent not set forth in Exhibit D) . 3 . 5 Effect of Agreement. This Agreement shall consti- tute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to specified and known criteria and rules as set forth in Exhibit A and the Existing Land Use Ordinances, subject to the Reservations of Authority, and to grant City and the residents KKR42075 11/9/94 Draft Dev. Agreement -12- VAW of the City certain benefits which they otherwise would not receive. This Agreement shall be binding upon the City and its successors in accordance with and subject to its terms and conditions notwithstanding any subsequent action of the City, whether taken by ordinance or resolution of the City Council, by initiative, or otherwise. The parties acknowledge and agree that by entering into this Agreement and relying thereupon, the Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to proceed with its development of the Project in accordance with the proposed uses of the Property, the maximum height and size of buildings to be constructed on the Property, the density and intensity of use of the Property and the requirements for the construction or provision of on-site and off- 0 site improvements and the reservation or dedication of land for public use, if and to the extent set forth in Exhibit A, and in accordance with the Existing Land Use Ordinances, subject to the Reservations of Authority, and the City has entered into this Agreement in order to secure the public benefits conferred upon it hereunder which are essential to alleviate current and potential problems in the City and to protect the public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. The parties acknowledge that: (a) the City has entered into this Agreement pursuant to the Development Agreement Legislation and its police power in order to address public health and safety and general welfare concerns including those relating to KKR42075 11/9/94 Draft Dev. Agreement -1 3- the amount, density, intensity and timing of development within the Property and the need for public facilities and infrastructure in connection with the Property and other property in the area; and (b) as, and to the extent contemplated in the Development Agreement Legislation, there is certain authority under the police power to address public health and safety concerns that cannot .be legally relinquished or restricted by this Agreement, and the City subsequent to the Effective Date may exercise such authority by the adoption of rules, regulations, and policies which may be applicable to the Project and/or the Property, but which do not conflict with the terms and intent of this Agreement as determined in the manner and in accordance with the standards set forth below. For the purposes of this Agreement any such rule, regulation or policy shall not be deemed to conflict with the terms and intent of 0 this Agreement if the same does not: (i) modify the permitted types of land uses, the density or intensity of use, the maximum height or size of proposed buildings on the Property, or impose requirements for the construction or provision of on-site or off-site improvements or the reservation or dedication of land for public use, or the payment of fees or the imposition of Exactions, other than as are in each case specifically provided for in this Agreement; or (ii) prevent the Developer from obtaining all necessary approvals, permits, certificates or other entitlements at such dates and under such circumstances as the Developer would otherwise be entitled under this Agreement; or KKR42075 11/9/94 Draft Dev. Agreement -14- prevent or inhibit the Developer from commencing, prosecuting and finishing on a timely basis the construction and development of the Project and the satisfaction of its obligations hereunder in the manner and as contemplated by this Agreement; or (iv) increase the cost of the construction or development of the Project, or the construction or provision of any public improvements to be provided by the Developer as contemplated herein, or the reservation or dedication of land for public purposes, or increase the cost of selling, financing or leasing the Project or any portion thereof. 3 . 6 Operating Memoranda. Developer and City acknowledge that the provisions of the Agreement require a close degree of cooperation between Developer and City, and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the parties under the Agreement in order to effectuate the purpose of the Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall confer in good faith with respect to such changes or provide for such additional provisions through operating memoranda to be considered in good faith by the parties, which, if approved, shall be attached hereto as addenda and become a part hereof, and may be further changed or supplemented from time to time as necessary, with further good faith approval of Developer KKR42075 11/9/94 Draft Dev. Agreement -1 5- NOW and City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda does not require the amendment of this Agreement in the manner provided in Section 65868 of the California Government Code, then no such operating memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement; and in the case of City such operating memoranda may be acted upon by its Community Development Director. Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any of the rights, duties or obligations of the parties hereunder or the provisions of this Agreement. 3 . 7 Limitations Reservations of Authority and Exceptions. Notwithstanding any other provision of this Agreement to the contrary including, without limitation, Sections 3 . 1 through 3 . 5 hereof, the development of the Property shall be subject to the exercise of the City's continuing authority with respect to the following: (a) Processing Fees imposed by City to cover the estimated or actual costs to City of processing applications for Development Approvals, or for monitoring compliance with any Development Approvals granted or issued, which fees are charged to reimburse the City's expenses attributable to such Development Approvals and which are in force and effect on a general basis at such time as the Development Approvals are granted or considered by City. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, KKR42075 11/9/94 Draft Dev. Agreement -16- reports, recommendations, appeals and any other matter of procedure. (c) Any and all uniform codes and regulations governing the engineering and construction of private or public improvements adopted by the City. Such codes include without limitation, the City's Uniform Housing Code, Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Building Security Code. City agrees that such codes and regulations, shall be those uniformly applied on a City-wide basis to all development projects of a similar type as the Project. (d) Regulations which are reasonably necessary to protect the residents of the Project or of the immediate community, or both, from a condition perilous to their health or safety, or both; provided, however, the following shall apply: (i) That to the extent possible, such regulations shall be applied and construed so as to provide Developer with the rights and assurances provided in this Agreement; and (ii) That such regulations apply uniformly to all new development projects of a similar type as the Project within the City; and (iii) That the City Council finds, based on substantial evidence, that such regulations are necessary to eliminate or reduce a public danger perilous to the health or safety of the residents of the Project or of the immediate community. (e) Regulations which do not conflict with the terms and intent of this Agreement. KKR42075 -17- 11/9/94 Draft Dev. Agreement (f) Regulations which are in conflict with the terms and intent of this Agreement, provided Developer has given written consent to the application of such regulations to development of the Property. The provisions of this Section 3 .7 shall supplement, not limit, the police powers of the City as described in Section 3. 5 hereof. 4 . Specific Criteria Applicable to Development of the . Proiect. 4 . 1 Applicable Ordinances. Except as set forth in Exhibit A and subject to the provisions of Section 4 . 2 below and the Reservations of Authority, the Existing Land Use Ordinances shall govern the development of the Property hereunder and the granting or withholding of all permits or approvals required to develop the Property. 4 . 2 Amendment to Applicable Ordinances. In the event that the Palm Desert zoning ordinance is amended by the City in a manner which .provides more favorable site development standards than those in effect as of the Effective Date, Developer shall have the right to notify the City in writing of its request to be subject to all or any such new standards for the remaining term of this Agreement. If City approves such request, which approval shall be in the City's reasonable discretion, by resolution of the City Council or by action of a City official whom the City Council may designate, such new standards shall become applicable to the Property. Should City thereafter amend such new standards, upon KKR42075 11/9/94 Draft Dev. Agreement -18- the effective date of such amendment, the original new standards shall continue to apply to the Property as provided above, but Developer may notify City in writing of its desire to be subject to all or any such amended new standards and City may agree in the manner above provided to apply such amended new standards to the Property. 4 . 3 Easements; Abandonments. City shall cooperate with Developer, at Developer's sole cost, expense and liability, in connection with any arrangements for abandoning existing utility or other easements and the relocation thereof or creation of any new easements within the Property necessary or appropriate in connection with the development of the Project; and if any such easement is owned by City, City shall at the request of Developer and in the manner and to the extent permitted by law, process and consider such action as may be necessary to abandon existing easements and relocate them, as necessary or . appropriate in connection with the development of the Project, all at the cost and expense of the Developer. 5. Public Benefits. 5. 1 (Reserved] 5.2 Palm Desert Redevelopment Agency. Developer and City acknowledge that the DDIA provides for certain terms, conditions and requirements with respect to the construction of the Minimum Improvements (as defined in the DDIA) by the Developer and the payment to Developer by the Agency of the Purchase Price (as defined in the DDIA) for the Parking Rights (as defined in the KKR42075 11/9/94 Draft Dev. Agreement -1 9- DDIA) . City and Developer agree that the payment to Developer of the Purchase Price shall be controlled in all respects by said DDIA and that in the event of any inconsistency between the provisions thereof and of this Agreement in connection with such payment, the provisions of the DDIA shall be deemed to control. City agrees that the performance by the Developer, of its obligations under said DDIA shall constitute the performance and satisfaction of its corresponding obligations hereunder. 5. 3 [Reserved] 5.4 [Reserved. ] 6. Review for Compliance. 6. 1 Periodic Review. The City shall review this Agreement annually, on or before the anniversary of the Effective i Date (the "Anniversary Date") , in order to ascertain the good faith compliance by Developer with the material terms of this Agreement. Developer shall submit to the Planning Director an annual monitoring report, in a form reasonably acceptable to the City, not less than thirty (30) , nor more than sixty (60) , days prior to each Anniversary Date. The annual monitoring report shall set forth Developer's good faith compliance with the material terms and conditions of this Agreement and shall be accompanied by an annual review and administration fee. The annual review and administration fee shall be in an amount consistent with then- existing City fee schedules and resolutions pertaining to the City's monitoring program for development agreements. Neither City nor Developer shall have a duty to notify the other of their KKR42075 11/9/94 Draft Dev. Agreement -2 0- respective obligations hereunder and the City's failure to so conduct such annual reviews shall not affect the rights, protection, and benefits afforded Developer by the Development Agreement Legislation and this Agreement. 6.2 Special Review. The Planning Commission or City Council, upon a finding on the basis of reasonable evidence that there exists a reasonable basis upon which to conclude that the Developer may not be in compliance with the material terms and conditions of this Agreement, may order the Planning Director to conduct a special review of the Developer's compliance with the material terms of this Agreement at any time. 6. 3 Procedure. (a) During either a periodic review or a special review, Developer shall be required to demonstrate good faith 0 compliance with the material terms of this Agreement. The burden of proof on this issue shall be on Developer. (b) Upon completion of a periodic review or a special review, the Planning Director or his or her designee shall submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by Developer with the material terms of this Agreement, and his/her recommended finding on that issue. (c) If the Planning Commission, upon receipt and review of the Planning Director's report, finds on the basis of substantial evidence that Developer has complied in good faith with the material terms of this Agreement, the review shall be concluded. KKR42075 11/9/94 Draft Dev. Agreement -2 1- (d) If the Planning Commission, upon recept and review of the Planning Director's report, makes a preliminary finding that Developer has not complied in good faith with the material terms of this Agreement, the Planning Commission may commence proceedings to terminate this Agreement under Sections 6.4 and 6. 5 hereof. Notice of default and the opportunity to cure as provided under Section 8.4 of this Agreement shall be given to Developer prior to the commencement of proceedings under Section 6. 4 and Section 6. 5. (e) Failure to comply with the material terms of this Agreement by reason of any facts or circumstances described in Section 7 . 1 hereof shall not constitute a failure of good faith compliance by the Developer with the material terms of this Agreement. Notwithstanding the foregoing, however, the inability of Developer to obtain or maintain financing necessary for the development of the Project shall not be deemed an excuse for the Developer 's failure to comply with the material terms of this Agreement. 6. 4 Proceedings Upon Termination. If, upon a finding under Section 6. 3 (d) and the expiration of the cure period provided in Section 8 .4 , the Planning Commission determines to proceed with termination of this Agreement, the Planning Commission shall give written notice to Developer of its intention to conduct a public hearing as provided in Section 6. 5 hereof. The notice shall be given at least thirty (30) calendar days prior to the scheduled hearing and shall contain: (a) The time and place of the hearing; KKR42075 11/9/94 Draft Dev, Agreement -2 2- (b) A statement as to whether or not the Planning Commission proposes to terminate the Agreement; and, (c) Such other information as is reasonably necessary to inform Developer of the nature of the proceeding and the factual basis for the Planning Commission's conclusion that Developer has not substantially complied with the material terms and conditions of this Agreement. 6. 5 Hearing on Termination. At the time and place set for the hearing on termination, Developer shall be given an opportunity to be heard. Developer shall be required to demon- strate good faith compliance with the material terms of this Agreement. The burden of proof on this issue shall be on Developer. If the Planning Commission finds, based upon substan- tial evidence, that Developer has not complied in good faith with 0 the material terms of this Agreement and has failed to cure or commence to cure any such default as provided in Section 8 .4 hereof, the Planning Commission may terminate this Agreement. Developer may appeal any determination of the Planning Commission made pursuant to this Section 6. 5 to the City Council in accordance with the then-existing provisions of the City Municipal Code for appeals of decisions of the Planning Commission to the City Council. The decision of the City Council shall be based on the record made before the Planning Commission and any additional evidence Developer may introduce at the hearing before the City Council. The decision of the City Council shall be final, subject to judicial review. Developer shall have the right to cure any default as provided in Section 8.4 hereof following any judicial KKR42075 11/9/94 Draft Dev. Agreement -2 3- decision upholding any City Council decision made pursuant to this Section 6.5; provided however, that not withstanding Section 7.4 hereof to the contrary, the Term of this Agreement shall not be extended for the pendency of such judicial action or proceeding if such judicial decision upholds the decision of the City Council. 6. 6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, Developer is found to be in compliance with this Agreement, City shall, upon request by Developer, promptly issue a Certificate of Agreement Compliance ("Certificate") to Developer stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Commission and City Council that (1) this Agreement remains in effect and (2) Developer is in compliance with the terms and provisions thereof. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the certificate is issued after a Periodic or Special Review, and shall state the anticipated date of commencement of the next Periodic Review. Developer may record the Certificate with the County Recorder. ' Whether or not the Certificate is relied upon by assignees or other transferees or Developer, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the City. KKR42075 11/9/94 Draft Dev. Agreement -2 4- 7. Permitted Delays• Supersedure by Subseguent Laws. 7. 1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts of God or civil commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation, acts, neglect, or breach of this Agreement by the other party, any referendum elections held on the Enacting Ordinance or the Land Use Ordinances, or any other ordinance affecting the Project or the approvals, permits or other entitle- ment related thereto, or restrictions imposed or mandated by governmental or quasi-governmental entities (provided that the City i shall not be excused from performance by reason of the foregoing if such ordinance or restriction was enacted by or otherwise insti- tuted by the City, unless the City was authorized by this Agreement to impose or enact such ordinance or restriction) , enactment of conflicting provisions of the Constitution or laws of the United States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws") , orders of courts of competent jurisdiction, or any event or circumstance giving rise to a permitted delay under the terms of the DDIA (to the extent that the Developer's performance under this Agreement is impacted thereby) , or any other cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. Each party shall KKR42075 11/9/94 Draft Dev. Agreement -2 5- promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The time of performance of such obligations, and, at Developer's request, the Term of this Agreement, shall be extended by the period of any delay hereunder. Notwithstanding anything in this Agreement to the contrary, the inability of Developer to obtain or maintain financing necessary for the development of the Project shall not be cause for an extension of time for performance or of the Term of this Agreement. 7 . 2 Supersedure of Subsequent Laws or Judicial Action; Termination of the Development Agreement. The provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with any new Law or decision issued by a court of competent jurisdiction (a "Decision") , enacted or made after the Effective Date which prevents or precludes compli- ance with one or more provisions of this Agreement. Immediately after enactment of any such new Law, or issuance of such Decision, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 7 . 1 above, for KKR42075 11/9/94 Draft Dev. Agreement -2 6- a period of time equal to the length of time the challenge was pursued. If, following such meetings with the City or the failure of any challenge to such new Law or Decision by either the City or Developer, the Developer determines in its sole reasonable business judgement that a modification or suspension of the terms or conditions of this Agreement is infeasible, the Developer shall have the right to terminate this Agreement by giving written notice to the City. Subject to the Reservations of Authority, nothing set forth in this Article 7 shall be construed to permit the City to enact a Law which conflicts with the terms or intent of this Agreement. 8. DEFAULT AND REMEDIES. 8. 1 Remedies in General. It is acknowledged by the parties that City would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof, except as otherwise expressly provided herein. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that neither party shall be liable in damages, including, without limitation, attorneys' fees and litigation costs, to the other party, or to any successor in interest of the other party, or to any other person, except as KKR42075 11/9/94 Draft Dev. Agreement -2 7- otherwise expressly provided in this Section 8. 1, and each party covenants not to sue for damages or claim any damages: (a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or (b) For the impairment or restriction of any right or interest conveyed or provided under, with, or pursuant to this Agreement; or (c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. Nothing contained herein shall modify or abridge Developer's rights or remedies (including its rights for damages, if any) resulting from the exercise by City of its power of eminent domain. 8. 2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate, and specific performance and other non-monetary relief, including temporary and permanent injunctive relief and mandamus, are particularly appropriate remedies for the enforcement of this Agreement and should be available to all Parties for the following reasons: (a) Money damages are unavailable against either party, except as provided in Section 8 . 1 above. (b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Developer may be KKR42075 11/9/94 Draft Dev. Agreement -2 8- two foreclosed from other choices it may have had to utilize the Property or portions thereof. Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Developer for such efforts; the parties acknowledge and agree that any injunctive relief may be ordered on an expedited, priority basis. 8. 3 Release. Except for nondamage remedies, including the remedy of specific performance and judicial review as provided for in Section 6. 5, Developer, for itself, its successors and assignees, hereby releases the City, its officers, agents and employees from any and all claims, demands, actions, or suits or any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the City because it entered into this Agreement . 8 . 4 Termination for Default of Developer. City may terminate this Agreement for any failure of Developer to perform in good faith any material duty or obligation of Developer under this Agreement, or to comply in good faith with the material terms of this Agreement (hereinafter referred to as "default") ; provided, KKR42075 11/9/94 Draft Dev. Agreement -2 9- however, City may terminate this Agreement only after providing written notice to Developer of default setting forth the nature of the default and the actions, if any, required by Developer to cure such default and, where the default can be cured, Developer has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty (60) day . period and to diligently proceed to complete such actions and cure such default. The review and hearing procedures set forth in Section 6 hereof are a condition precedent to the City's ability to terminate this Agreement pursuant to this Section 8. 4 . 8 . 5 Termination of Agreement for Default of City. Developer may terminate this Agreement only in the event of a default by City in the performance of a material term of this Agreement and only after providing written notice to City of default setting forth the nature of the default and the actions, if any, required by City to cure such default and, where the default can be cured, City has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty (60) day period and to diligently proceed to complete such actions and cure such default. KKR42075 11/9/94 Draft Dev. Agreement -3 0- 8. 6 Effect of Termination. Termination of this Agreement by one party due to the other party's default shall not affect any right or duty emanating from any approvals, permits, certificates or other entitlements with respect to the Property or the Project which were issued, approved or provided by the City prior to the date of termination of this Agreement. If City terminates this Agreement because of Developer's default, then City shall retain any and all benefits, including money, land or improvements conveyed to or received by the City prior to the date of termination of this Agreement. If Developer terminates this Agreement because of City's default or ; pursuant to; Sec ion Y; eof, then Developer shall be entitled to all of the benefits ................... .. arising out of, or approvals, permits, certificates or other entitlements on account of, any Exactions paid, given or dedicated to, or received by, City prior to the date of termination of this Agreement. Except as provided in this Section 8 . 6 or otherwise in this Agreement, all of the rights, duties and obligations of the parties hereunder shall otherwise cease as of the date of the termination of this Agreement. If this Agreement is terminated pursuant to any provision hereof, then the City shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne by the party causing such action. 8 .7 Effect of Termination of DDIA. No termination of the DDIA shall terminate this Agreement unless the cause for termination of the DDIA is likewise cause for termination of this KKR42075 11/9/94 Draft Dev. Agreement -3 1- Agreement, as provided herein; provided, however, that Developer shall have the right to terminate this Agreement without cost or liability to the City or Developer if the DDIA is terminated. 9. Third Party Litigation. 9. 1 General Plan Litigation. City has determined that this Agreement is consistent with its Comprehensive General Plan, herein called General Plan, and that the General Plan meets all requirements of law. Developer has reviewed the General Plan and concurs with City' s determination. Neither the City nor the Developer shall have any liability under this Agreement for any failure of City or Developer to perform under this Agreement or the inability of Developer to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law. 9. 2 (Reserved] 9 . 3 Indemnity. Developer agrees to and shall defend, indemnify and hold the City and the Agency and their respective officers, employees, contractors and agents harmless from and against all liability, loss, damage, costs or expenses (including reasonable attorney's fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or to the property of any person which shall occur directly or indirectly as a result of this KKR42075 11/9/94 Draft Dev. Agreement -3 2- Agreement or any actions taken by Developer pursuant to this Agreement, and which shall be directly or indirectly caused by any negligent or wrongful errors or omissions of the Developer or its agents, servants, employees or contractors with respect to the construction of the Project. The Developer shall not be responsi- ble for, and such indemnity shall not apply to, any acts, errors or omissions (or breach of this Agreement) of the City or the Agency or their respective agents, servants, employees or contractors. 9. 4 Environmental Contamination. Developer shall , indemnify and hold City, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of Developer, its officers, agents, employees, subcontrac- tors, and independent contractors, in violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on or under any portion of the Property which may be dedicated or transferred to City by Developer including, but not limited to, soil and groundwater conditions. Developer shall defend, at its sole cost and expense, including attorneys fees and litigation costs, City, its officers, agents, contractors, and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such claim, action or proceeding. 9. 5 City to Approve Counsel. With respect to Sections 9. 3 and 9.4 hereof, City reserves the right to either (1) approve the attorney(s) which Developer selects, hires or otherwise engages to defend City hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense; provided, however, that KKR42075 11/9/94 Draft Dev. Agreement -3 3- if City reasonably disapproves any attorney(s) selected by Developer, Developer shall promptly reimburse City for any and all reasonable expenses incurred by City for such defense, including reasonable attorneys' fees, upon billing and accounting therefor. 9. 6 Accept Reasonable Good Faith Settlement. With respect to Sections 9. 3 and 9 . 4 hereof, City shall not reject any reasonable good faith settlement. If City does reject a reasonable, good faith settlement that is acceptable to Developer, Developer may enter into a settlement of the action, as it relates to Developer, and City shall thereafter defend such action (including appeals) at its own cost and be solely responsible for any judgments rendered in connection with such action. This Section 9. 6 applies exclusively to settlements pertaining to monetary damages or damages which are remedial by the payment of i monetary compensation. Developer and City expressly agree that this Section 9. 6 does not apply to any settlement which requires an exercise of the City's police powers, limits the City' s exercise of its police powers, or affects the conduct of the City's municipal operations. 9 . 7 Survival. The provisions of Sections 9 . 1 through 9 . 6 inclusive, shall survive the termination or expiration of this Agreement as to matters arising prior to termination or expiration. 10. Mortgagee Protection; Certain Rights of Cure. Nothing contained herein including, but not limited to, Section 11. 2 , shall limit Developer, in any manner and at Developer' s sole discretion, from encumbering the Project or any portion thereof by one or more KKR42075 11/9/94 Draft Dev. Agreement -3 4- Mortgages or from assigning Developer's rights, title and interests under this Agreement to a Mortgagee or interfere with the lien of or the remedies of a Mortgagee (a "Mortgagee" includes the holder of any Mortgage or any beneficial interest under a Mortgage, or the purchaser at a judicial or nonjudicial foreclosure sale pursuant to the remedies provided in a Mortgage, or any person or entity which acquires title to the Property or any part thereof pursuant to a deed in lieu of foreclosure, or any successor, assignee or transferee thereof) and no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage. 10. 1 Mortgagee Not Obligated. No Mortgagee shall have an obligation or duty under this Agreement to perform Developer's obligations or duties hereunder or to guarantee the Developer's performance thereof. 10. 2 Notice of Default; Right to Cure. If a Mortgagee files with the City Clerk a written notice requesting a copy of any notice of default given Developer hereunder and specifying the address for delivery thereof, then City shall deliver to such Mortgagee, concurrently with delivery thereof to Developer, any notice given to Developer with respect to any claim of City that Developer has not complied with the terms hereof or is otherwise in default hereunder. The failure of the City to provide such notice, however, shall not impair or defeat the City's exercise of its rights or remedies under this Agreement or otherwise; subject to the rights of a Mortgagee pursuant to this Section 10. Each such Mortgagee shall have the right (but not the obligation) for a period of sixty (60) days after receipt of such notice from City to KKR42075 -3 5- 11/9/94 Draft Dev. Agreement . err% err' cure or remedy, or to commence to cure or remedy, the claim of default or noncompliance set forth in the City's notice. If any such default or noncompliance cannot, with diligence, be remedied or cured within such sixty (60) day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such default or noncompliance if such Mortgagee commences to remedy or cure within such sixty (60) day period, and thereafter diligently pursues and completes such remedy or cure. Notwithstanding the foregoing, if the default or noncompliance is of a nature which can only be cured by such Mortgagee obtaining possession, such Mortgagee shall be deemed to have remedied or cured such default or noncompliance if such Mortgagee shall, within such sixty (60) day period, commence efforts to obtain possession and carry the same forward with diligence and continuity through i implementation of foreclosure, appointment of a receiver or otherwise, and shall thereafter remedy or cure or commence to remedy or cure the default or noncompliance within sixty (60) days after obtaining possession. 10. 3 Bankruptcy. Notwithstanding the provisions of Section 10. 2 above, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof to obtain possession of the Property by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceed- ing involving Developer, the Mortgagee shall for the purposes hereof be deemed to be proceeding with diligence and continuity to obtain possession of the Property during the period of such KKR42075 11/9/94 Draft Dev. Agreement -3 6- prohibition if the Mortgagee is proceeding diligently to terminate such prohibition. 10.4 Estoppel Certificates. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. City acknowledges that a certificate hereunder may be relied upon by transferees, assignees and lessees of the Developer and any Mortgagee. 11. Transfers and Assignments; Effect of Agreement on Title. 11. 1 Rights. and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. 11. 2 Transfer. voluntary or involuntary successor in interest of the Developer shall acquire any rights under this Agreement with respect to the Property or assume, or be deemed to have assumed, any obligations or duties hereunder with respect to KKR42075 11/9/94 Draft Dev. Agreement -3 7- the development of the Property except as expressly set forth herein. (bY' Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder, and to assign and transfer any and all of its duties and obligations hereunder, only in accordance with the provisions of this Section 11.2, subject to Section 10 hereof. -(&Y Prior to the earlier of: (i) The termination of this Agreement or the expiration of its Term; or (ii) The date that the City is required to issue a certificate of Occupancy for the improvements to be constructed in accordance with the Precise Plan, the Developer's rights and interests hereunder may not be sold, transferred or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the Property to which they relate, including any transfer or assignment pursuant to the granting of any Mortgage, any foreclosure of a Mortgage, or a deed in lieu of such foreclosure; and (ii) At least thirty (30) days prior to any such sale, assignment or transfer of said rights or interests (other than pursuant to the granting of a Mortgage, any foreclosure of a Mortgage, or a deed in lieu of foreclosure) , Developer shall notify City in writing of such sale, transfer or assignment, the portion(s) of the Property to which the sale, assignment or KKR42075 11/9/94 Draft Dev. Agreement -3 8- of The Madison Realty Partnership, Limited Partnership ("Madison") , John P. Boorn ("Boorn") , James S. Bennett ("Bennett") , or William Bone ("Bone") is a general partner, or any other entity which is controlled by Madison, Boorn,Bennett or Bone, singly or in any combination. >« In order to allow City to make an informed decision regarding the consent to an assignment or transfer by Developer of any of its obligations or covenants under this Agreement as described in the ifafnediately preeeding bove, City may reasonably require the proposed transferee (other than a Developer Affiliate) to submit financial statements and evidence of its fitness, experience and ability (or that of its senior managerial personnel) to comply with the obligations being assumed. Prior to the date of such assignment, the transferee including any Developer Affiliate) shall post cash, surety bonds, letters of credit or other collateral reasonably acceptable to City, if and to the extent any security has been previously provided by Developer to City, to secure the transferee ' s performance of its obligations with respect to the portion of the Project being acquired by such transferee. It is understood and agreed that until all of the conditions set forth in this subsection (`b). and the inmediately preeeding-paratrgk ubsection {e) above have been performed, Developer shall not be relieved of and from liability or responsibility for compliance with the obligations arising under this Agreement with respect to the portion of the Project being transferred. KKR42075 11/9/94 Draft Dev. Agreement -4 0- Notwithstanding anything to the contrary contained herein, any permitted transferees or assignees of any of the rights and interests of Developer in accordance with the provisions of this Section 11. 2 shall have no duty or obligation to perform Developer' s executory obligations or other affirmative covenants of Developer under this Agreement, unless such executory obligations or affirmative covenants are expressly assumed in connection with the conveyance of such rights and interests. h')` In the event that any permitted transferee or • assignee does not assume such executory obligations or affirmative covenants, the Developer shall remain responsible for the complete and faithful performance of those obligations and affirmative covenants. In the event that Developer fails to perform such obligations or affirmative covenants in accordance with the provisions of this Agreement, then the failure of the Developer to so perform shall constitute an event of default hereunder with respect to any portion of the Property acquired by any transferee or assignee and to any portion of the Property retained by Developer. In such event, the City may commence termination proceedings pursuant to Section 6 and 8 . 4 of this Agreement with respect to anyportion of the Property acquired by any transferee or assignee and to any portion of the Property retained by Developer. (i) In the event such executory obligations or affirmative covenants with respect to any portion of the Property acquired by any permitted transferee or assignee are assumed by such permitted transferee or assignee, no subsequent failure by such transferee or assignee (or any subsequent transferee or KKR42075 11/9/94 Draft Dev. Agreement -4 1 assignee) to perform or comply with such executory obligations or affirmative covenants shall be deemed an event of default by the Developer hereunder. Similarly, no failure of the Developer to perform or comply with its executory obligations or affirmative covenants which have not been so transferred or assigned shallconstitute an event of default hereunder with respect to such transferee or assignee (or subsequent transferee or assignee) . {>3 <€> The provisions of the }::= immediately e pi . w J .................. ................... h) its—subsections (f) and ;( of this Section 11. 2 shall • not apply to the following: (a ) Any Mortgage or Mortgagee. (b ) The sale, ground leasing or transfer of any portion of the Property to any purchaser, transferee or tenant occupying at least 15, 000 square feet of gross leasable area in the Project ("Major") , provided such Major is an experienced retailer which generally acquires sites in retail centers for the purposes of erecting, constructing, maintaining and operating (or causing to be erected, constructed, maintained and operated) retail stores, and provided further that such Major' s use or proposed use of the Property or the improvements thereon is the consistent with the Precise Plan approved by the City pursuant to this Agreement. (eiii) The conveyance or dedication of any portion of the Property to the City, Agency or other appropriate governmental agency, or the granting of easements or permits to facilitate the development of the Property. (div) The leasing of space for occupancy in the Project. KKR42075 11/9/94 Draft Dev. Agreement -4 2- (ev) The sale, ground leasing or leasing of any portion of the Property and improvements thereon for development pads permitted by the Precise Plan approved by the City. It is understood and agreed that the exceptions provided in subparagraphs (b ) and (e ) above shall apply only if the aggregate amount of all prior sales, ground leases or transfers of any portion of the Property is less than 1/3 of the total gross leasable area constructed or to be constructed in the Project . (k} Provided that all conditions of this Section . 11.2 have been satisfied, the City shall take all actions reasonably necessary to accomplish the sale, transfer, assignment, conveyance or delegation of such rights and interests and such duties and obligations as permitted pursuant to this Section 11. 2 , including, but not limited to, the execution by the City of such instruments or documents as the Developer may reasonably request to evidence the release of the Developer from any such duties or obligations; provided, however, that the City shall not be required to so act if it reasonably believes that to do so would materially impair its rights or obligations under this Agreement. 11. 3 Termination of Agreement with Respect to Property. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any portion of the Property with respect to which a final subdivision map or parcel map conforming to the terms and provisions of this Agreement has been recorded, and thereupon, and without the execution or recordation of any further document or instrument, such portion of the Property shall be released from and shall no longer be subject KKR42075 11/9/94 Draft Dev. Agreement -4 3- to or burdened by the provisions of this Agreement; provided, however, that (i) the foregoing shall not be construed to release Developer from any then unperformed obligations under this Agreement with respect to such portion of the Property, and (ii) the benefits of this Agreement shall continue to run as to such portion of the Property until such time as such portion of the Property is developed and the benefits of this Agreement with respect thereto are fully utilized by the construction of a building or buildings or other improvements thereon. Upon receipt of written request therefor and subject to the provisions of Section 11. 2 hereof and this Section 11. 3 , the City shall promptly provide to the Developer, or any transferee or assignee of an interest of the Developer in the Property, a written statement confirming the release of any portion of the Property from the burdens of this Agreement or the termination of this Agreement with respect to such portion of the Property, which statement shall be in form appropriate for recording in the official records of Riverside County and shall impart constructive record notice of such release or termination. 11. 4 Covenants Run with Land. Subject to the foregoing provisions of this Section 11 and Section 10 hereof: (i) All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, lessees, and all other persons acquiring any rights or interests in the Property, or any portion KKR42075 11/9/94 Draft Dev. Agreement -4 4- thereof, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns; (ii) All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law; (iii) Each covenant to do or refrain from doing some act on the Property hereunder (A) is for the benefit of and is a burden upon every portion of the Property, (B) runs with such lands, and (C) is binding upon each party and each successive owner during its ownership of the Property or any portions thereof, and shall benefit each party and its lands hereunder•, and each such other person or entity succeeding to an interest in such lands. Notwithstanding any of the foregoing or anything to the contrary contained in this Agreement, any transferee or assignee or Mortgagee which acquires any right or interest in or with respect to the Property or any portion thereof shall take and hold such rights and interests subject to this Agreement and shall not have been deemed to have .assumed any obligations or duties of the Developer hereunder except to the extent that any such transferees or assignees or Mortgagees have expressly assumed in' writing any of the duties or obligations of the Developer hereunder. 12 . Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by KKR42075 11/9/94 Draft Dev. Agreement -4 5- sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: If to City: City Clerk of the City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 If to Developer: The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. John P. Boorn with a copy to: The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. James S. Bennett with a copy to: Pircher, Nichols & Meeks 1999 Avenue of the Stars, Suite 2600 Los Angeles, California 90067-6077 Attention: PN&M Notices (SAH) Either party may change its mailing address at any time by giving written notice of such change to the other party in the manner provided herein. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 13 . Miscellaneous. KKR42075 11/9/94 Draft Dev. Agreement -4 6- 13 . 1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that ,none of the terms or provisions of this Agreement are intended to or shall be. deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 13 . 2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise specified in this Agreement or otherwise required by law for a specific time period, consent shall be deemed given within thirty (30) days after receipt of the written request for consent, and if a party shall neither approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this Agreement or otherwise required by law for consent, that party shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor shall be stated in reasonable detail in writing. This Section 13 . 2 does not apply to Development Approvals. 13 . 3 Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly KKR42075 11/9/94 Draft Dev. Agreement -4 7- limited to and for the purposes herein expressed for the development of the Project as private property. Except for any portion of the Property which has been conveyed to the City by Developer as provided in this Agreement or the DDIA, Developer shall have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas and buildings and improvements located thereon, by any person for any purpose inimical to the development or operation of the Project as contemplated by this Agreement. Any portion of the Property conveyed to the City by Developer as provided herein shall be held and used by the City only for the purposes contemplated herein or otherwise provided in such conveyance, and City shall not take or permit to be taken (if within the power or authority of the City) any action or activity with respect to such portion of the i Property that would deprive the Developer of the material benefits of this Agreement or would materially and unreasonably interfere with the development of the Project as contemplated by this Agreement. 13 . 4 Severability. If any term, provision covenant or condition of this Agreement shall be determined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. 13 . 5 Exhibits. The Exhibits listed in the Table of Contents, to which reference is made herein, are deemed KKR42075 11/9/94 Draft Dev. Agreement -4 8- incorporated into this Agreement in their entirety by reference thereto. 13 . 6 Entire Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto. 13 . 7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 13 . 8 Signature Pages. For convenience, the signatures of the parties to this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. KKR42075 11/9/94 Draft Dev. Agreement -4 9- 13 .9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above-written. DEVELOPER: THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership By: The Boorn Bennett Limited Partnership, an Ohio limited partnership, its general partner By: Boorn, Inc. , an Ohio corporation, its general partner By: John P. Boorn President CITY: THE CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California By: Mayor Attest: City Clerk KKR42075 11/9/94 Draft Dev. Agreement -5 0- STATE OF CALIFORNIA) ss. COUNTY OF ) On before me, the undersigned, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are-subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/ her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. KKR42075 11/9/94 Draft Dev. Agreement -5 1- STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On before me, the undersigned, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signatures) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. KKR42075 11/9/94 Draft Dev. Agreement -52- err►' + ' EXHIBIT "A" PALM DESERT PROJECT DEVELOPMENT STANDARDS FOR THE PROJECT I. Purpose of Development Standards II. Project Introduction A. Overview and Location B. Project Statistical Summary III. General Notes and Conditions IV. General Development of Project A. Proposed Uses B. Building Square Footage Limits and Maximum Heights C. Density and Intensity of Use D. Open Space V. Planning Guidelines A. Purpose B. Site Planning and Circulation C. Grading/Drainage/Street Standards D. Landscaping, Walls and Lighting E. Design Concept of Buildings/Parking/ Loading Area F. Utility Services and Structures G. Project and Business Identification VI. Plan Review Requirements A. Purpose B. Development/Precise Plan Review C. Development/Precise Plan Contents KKR42075 11/9/94 Draft Dev. Agreement -1- I. Purpose of Development Standards The purpose of the development standards for the Project is to: 1. Provide the Developer with a planning and development process which will result in a Project that is consistent with the City's General Plan and in furtherance of the goals of the City as set forth in the Agreement. 2. Provide supplemental criteria for the use, design, density, circulation and development of the Project (as described in II.B hereof) that will result in an aesthetically pleasing, environmentally harmonious and commercially viable product that expands the goods and services presently available to the community. 3 . Ensure that development occurs in an orderly fashion through long-range planning. 4 . Encourage development that is operationally functional to both the building operator and the consumer. 5. Provide for the development of the Project in a manner which is consistent with the terms and i provisions of the Agreement and the Existing Land Use Ordinances. II. Project Introduction A. Overview The Project presents an opportunity to master plan one of the remaining large vacant properties within the area of the City subject to the City' s Commercial Core Area Specific Plan. The development of the Project in accordance with the provisions of the Agreement and these development standards furthers the development objectives of the City in an orderly manner. The development of the Project in accordance with the provisions of the Agreement and the development standards provides a number of benefits: KKR42075 11/9/94 Draft Dev. Agreement -2- 1. It maximizes the potential for high quality economic development of the Commercial Core Area. 2 . It addresses specific policy recommendations of the Palm Desert Commercial Core Area Specific Plan. 3 . It provides for the completion of all necessary signalization and pedestrian amenities for E1 Paseo, Shadow Mountain Drive, Larkspur Lane and San Pablo Avenue in the vicinity of the Project, as provided for in Exhibit "D" . B. Project Statistical Summary Common Name: Sun Lodge Colony Location: SWC E1 Paseo and Larkspur Lane Acreage: 10 . 3 acres Site Topography: generally flat with slight slope up to the south. III . General Notes A. Purpose This section III is included to: (i) provide certain definitions for use with respect to this Exhibit "A" ; (ii) to describe the relationship of this Exhibit "A" to the Existing Land Use Ordinances and the Building Ordinances; and (iii) provide other miscellaneous provisions necessary to effectuate the purposes and intent of the Agreement. B. General Notes 1. Terms contained in this Exhibit "A" shall have the same meaning as defined in the Agreement unless otherwise defined herein. 2 . Except as otherwise provided in this Exhibit "A" and in the Agreement, the development of the Project shall be in accordance with, and the development of the Project during the Term shall be KKR42075 11/9/94 Draft Dev. Agreement -3- governed by, the Existing Land Use Ordinances. 3 . Except as otherwise provided in this Exhibit "A" and in the Agreement, all construction of improvements upon the Property shall conform to the building and construction standards established by the building ordinances. 4 . Whenever the provisions of this Exhibit "A" conflict with the provisions of the Existing Land Use Ordinances or the Building Ordinances the provisions of this Exhibit "A" shall be deemed to control to the extent necessary to effectuate the purposes and intent of the Agreement. 5. The maximum aggregate allowable building square footage for the Project shall be 167, 000 s. f. of gross leasable area; provided, however, that the Project may include up to an additional 30, 000 square feet of gross leasable area if a lease or other occupancy agreement is entered into with any of the following for the construction of a retail store in the Project: (a) Saks Fifth Avenue, (b) one J (1) or more retailers which are similar to Saks Fifth Avenue (in which event City shall have the right to decide, in its reasonable discretion, whether or not each such retailer proposed by Developer is similar to Saks Fifth Avenue) , or (c) one (1) or more retailers which are not similar to Saks Fifth Avenue (in which event City shall have the right to approve each such retailer in its sole discretion) . The failure of City to respond to a request for approval of a retailer pursuant to clause (b) or (c) of the immediately preceding sentence within twenty (20) days after Developer's request shall be deemed approval of such retailer. The City covenants and agrees that the amendments to the Development Agreement set forth in this paragraph 5 relating to the permitted size of the Project shall not result in a reduction of the maximum aggregate allowable building square footage provided in the Development KKR42075 11/9/94 Draft Dev. Agreement -4- Agreement for the properties affected thereby (or otherwise obtained from the City by the developers of such properties in the course of their development) . 6. Development of the Property may accommodate all uses permitted in the C-1 zone as identified in the Existing Land Use Ordinances. 7. Parking requirements for layouts and sizes for the Project shall be based upon the requirements for general retail and office use as described in the Existing Land Use Ordinances. Parking requirements, including ratios, shall be based upon the less stringent of the following: (a) the requirements for general retail and office use as described in the Existing Land Use Ordinances, or (b) four spaces per 1, 000 square feet of gross leasable area. Notwithstanding anything to the contrary set forth in paragraph IIIB6 or this paragraph IIIB7 or in the Existing Land Use Ordinances, up to 25% of the total gross leasable area may be developed as restaurant space with no additional parking requirements. i 8 . Changes in the location or configuration of the buildable zones within the Project may occur as specific site plans are developed. Any such changes will be subject to the prior approval of the Community Development Director of the City. .9. Tentative Tract Maps may be filed and approved subject to consistency with the Precise Plan. 10. Except as otherwise provided herein, all approvals of the City, the Community Development Director, or the Planning Commission of the City required as provided herein shall be based upon the criteria and standards for such approval set forth in the Existing Land Use Ordinances and the Building Ordinances. KKR42075 11/9/94 Draft Dev. Agreement -5- 11. Prior to the issuance of any building permit with respect to the Project, a Precise Plan for the development of the Project shall be submitted to the Planning Commission and shall be approved by the Planning Commission if such Precise Plan is consistent with and complies with the provisions of the Agreement. 12 . The Developer shall be permitted to establish a Project office on the Property upon execution of the Agreement by the City. 13 . Sizing of all backbone utility facilities shall be predicated on the maximum density proposed for the Project and shall not be required to be oversized to accommodate uses other than with respect to the Project. 14 . Unless otherwise provided in the Precise Plan, all improvements required as Exactions pursuant to the attached Exhibit "D" shall be constructed by Developer as and when such improvements are necessary with respect to Project development, as determined by the City. IV. General Development of the Project A. Proposed Uses Any or all uses permitted in the C-1 zone of the Existing Land Use Ordinances. B. Maximum Building Square Footage Limits and Maximum Heights Maximum S.F. 167 , 000 (subject to increase as set forth in paragraph IIIB5) . Height Limit Per applicable Existing Land Use Ordinances C. Density and Intensity of Use KKR42075 11/9/94 Draft Dev. Agreement -6- The Developer shall be entitled to develop the Property to the maximum building site coverage percentage provided in the applicable Existing Land Use Ordinance as it pertains to the Property. The Precise Plan shall depict the eligible building areas within the Property. Buildings shall be reasonably distributed within the Property to permit ease of vehicular and pedestrian access, circulation and egress and for proper operational building service requirements. V. Planning Guidelines A. Purpose Except as otherwise provided in the Agreement or this Exhibit "A" , the development of the Property shall be subject to and controlled by the design and development guidelines established by the Existing Land Use Ordinances and the Building Ordinances. The following guidelines are intended to be supplemental to those established by the Existing Land Use Ordinances and the Building Ordinances and to the extent they are inconsistent or in conflict with the guidelines established by the Existing Land Use Ordinances and the Building i Ordinances, these guidelines shall be deemed controlling. Subject to the foregoing, all development plans for the Property shall comply with the following guidelines. B. Site Planning and Circulation Interior vehicular circulation shall be patterned to permit ease of ingress and egress as well as the distribution of buildings in relation to parking areas to allow for the dispersion of vehicles and pedestrians throughout the Property. The Project shall have clearly defined pedestrian routes into and throughout the Property in order to minimize potential points of conflict between pedestrians and vehicles. Individual entries shall occur at the designated locations on the Precise Plan. Building setbacks shall be as depicted on the Precise Plan. C. Grading/Drainage KKR42075 11/9/94 Draft Dev. Agreement -7- Grading design shall reinforce the architectural and landscape designs in the following ways: A. Assist in screening parking, loading and service areas. B. Reduce the perception of height and mass of large buildings. C. Provide a reasonable transition from the street to the Property. The applicant may obtain permits for rough grading after approval of conceptual grading plans by the Director of Public Works and the Director of Community Development. Grading shall be permitted outside of an area of immediate development if consistent with the conceptual grading plan. Drainage of surface parking areas and roof areas shall terminate at an underground storm drain system in the public streets. Points of connection will be provided for the Property. D. Landscaping Landscape materials shall enhance the major architectural design elements through the coordinated use of indigenous and introduced plant species, lighting, massing, etc. Landscaping shall be in accordance with a landscape concept plan as provided in the Existing Land Use Ordinances. The landscape . concept plan will be submitted as part of the Precise Plan at the time development of the Property is proposed. The landscape framework will be compatible with the desert environment. E. Design Concept of Buildings/Parking/Loading Areas The architecture of the Project shall possess an underlying compatibility among the various buildings through the use of similar materials, finishes, colors and amenities while allowing a degree of flexibility for expression and KKR42075 11/9/94 Draft Dev. Agreement —$— �rrrd identity. All building designs shall be aesthetically agreeable with the desert environment. The Property shall provide 200 parking spaces in addition to the number of parking spaces otherwise required by paragraph IIIB7 . Loading docks, service delivery areas, where provided, are required to be screened, recessed, and/or enclosed so as not to be visible from adjacent streets and properties. Loading, service and delivery areas shall not encroach into any setback areas. F. Utilities and Utility Structures Public services and utilities will be provided by the following public/private agencies unless otherwise approved by the Director of Community Development: a. Water - Coachella Valley Water District b. Sewer - Coachella Valley Water District C. Flood Control - Coachella Valley Water District d. Electricity - Southern California Edison i Company e. Natural Gas - Southern California Gas Company f. Telephone - General Telephone Company g. Schools - Palm Springs and Desert Sands Unified School District h. Public Parks - Coachella Recreation and Parks District i. Fire Protection - Riverside County Sheriff Department j . Police Protection - Riverside County Sheriff Department k. Solid Waste Disposal - Riverside County Road Department and Palm Desert Disposal Services 1. Television - Coachella Valley Television All utilities shall be installed and maintained underground. Utility design shall not place excessive burdens upon offsite systems. KKR42075 11/9/94 Draft Dev. Agreement —9— Temporary overhead power and telephone facilities are permitted during construction only. Any device for transmission or reception of communication signals shall be screened. Rooftop devices shall not extend above the building' s highest architectural element or be visible within a horizontal line of sight. Ground-mounted devices shall be screened from view from adjacent streets and property. Outdoor trash areas shall be visually screened by a 6-ft.-high (minimum) , non combustible enclosure constructed of the same materials and finishes as the adjacent building. Enclosures shall be designed and located so as not to be highly visible from adjacent streets and property. G. Project and Business Identification Project entry statements composed of signage, landscaping, architectural features, or a combination of same, will be depicted on the landscape concept plan. i VI . Plan Review Requirements A. Purpose This section is established to ensure that the overall purpose and intent of the Project is satisfied and implemented in an orderly manner. B. - Development/Precise Plan Review When the actual development of the Property is proposed, an application for approval of a Precise Plan shall be filed with and such Precise Plan shall be approved by the 'Planning Commission if it is consistent with the Precise Plan and complies with the provisions of this Agreement and this Exhibit "A" . C. Precise Plan Contents Subject to the provisions of the Agreement and this Exhibit A, the Precise Plan shall comply KKR42075 11/9/94 Draft Dev. Agreement -10- NOW with the requirements of Section 25.73 . 011 of the Existing Land Use Ordinances. KKR42075 11/9/94 Draft Dev. Agreement EXHIBIT "B" THE PROPERTY THE FOLLOWING REAL PROPERTY IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: The following legal description encompasses the entirety of the Property on the Precise Plan. Parcels 1 and 2 of Parcel Map 4655, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 7, Page 42 of Parcel Maps, in the Office of the County Recorder of said County. KKR42075 11/9/94 Draft Dev. Agreement -1- EXHIBIT "C" PHASING SCHEDULE Phase Entitlement /Maximum Rate Development Activity I. Execution of Agreement Developer may obtain all Agreement authorized, necessary approvals , executed and delivered consents, permits, or other to Developer by City of entitlement for the Palm Desert construction and occupancy of not less than 100, 000 square feet of gross floor area within the Property and not more than that permitted by paragraph IIIB5 of Exhibit A. KKR42075 11/9/94 Draft Dev. Agreement -1- EXHIBIT "D" EXACTIONS As provided in the Agreement, the following constitutes those Exactions which may be imposed by the City with respect to the development of the Project. The following Exactions include all of the mitigation measures with respect to the Project for which the Developer will be responsible for satisfying and which were identified in the Environmental Impact Report (the "EIR") pertaining to the Project and certified as complete by the City on November 16, 1989. Unless otherwise provided for in this Exhibit "D" , all Exactions shall be constructed or provided by the Developer in conformance with the requirements of the Existing Land Use Ordinances. Those Exactions identified herein, while intended to be specific in nature, will remain subject to specific Project review as provided in Exhibit "A" . The City and the Developer will in good faith attempt to agree as to any modifications of the following Exactions which are requested by the City as a result of such specific Project review. 1. Street Improvements All street improvements are subject to the review and approval of construction documents pertaining thereto by the City of Palm Desert i Department of Public Works. All of the following street improvements are to be located adjacent to the Project. A. South side of El Paseo between San Pablo Avenue and Larkspur Lane -- completion of all pedestrian amenities including street lighting, landscaping, bus stations, sidewalks, benches, and decorations. B. West side of Larkspur Lane between E1 Paseo and Shadow Mountain Drive -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks. C. East side of San Pablo Avenue between E1 Paseo and Shadow Mountain Drive -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks. KKR42075 11/9/94 Draft Dev. Agreement -1- D. North side of Shadow Mountain Drive between Larkspur Lane and San Pablo Avenue -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks. 2 . Traffic Signals All of the following traffic signal improvements and signal modifications are to be located adjacent to the Project. As used in this Paragraph 2 , the "related improvements" shall mean those improvements identified by the City of Palm Desert Department of Public Works as necessary to implement the traffic signal modifications to which they relate. A. New traffic signal and related improvements at the intersection of E1 ' Paseo and Larkspur Lane, all as required by the EIR. B. Traffic signal modifications and related improvements at El Paseo and San Pablo Avenue, all as required by the EIR. 3 . Storm Drains A. Construction of all necessary drainage systems with respect to the Project and the facilities necessary to connect such systems to the existing underground storm drain systems in the public streets, all as required by the EIR. 4 . Transit A. Construction of bus turnouts and shelters for the Project, all as required by the EIR. B. Provide a Transportation Demand Management Study as required by the EIR. 5. Parking In conjunction with the construction of the private commercial/retail facilities to be located on the Property (if constructed) , the Developer shall provide 200 additional parking KKR42075 — 11/9/94 Draft Dev. Agreement -2 spaces above project parking requirements for the Property as required by paragraph IIIB7 of Exhibit A. Prior to the commencement of construction of the commercial/retail facilities to be located on the Property, the Developer and the Agency shall have in good faith negotiated and entered into the Parking Management Agreement described in Section 5. 1 of the DDIA. It is the intent of the Developer and the City that, subject to the provisions of the DDIA pertaining to the payment by the Agency to the Developer of the Purchase Price for the Parking Rights, the' Developer will pay all costs of constructing such parking spaces. 6. Housing The Developer will pay a housing mitigation fee for the Project at the time of building permit issuance with respect thereto. The proceeds of such fees shall be used by the City, along with other revenues of the City, to address the very low, low and moderate income housing needs generated by the development of the Project consistent with the housing programs identified or to be identified in the housing element of the City' s General Plan. Such fee shall be in 0 the amount of $1. 00 per square foot of building floor space for mixed commercial/retail development and $. 50 per square foot of building floor space for professional office development. This fee shall be payable by the Developer only if a similar fee equal to or greater than this fee will be required by the City with respect to all other commercial development within the City. In no event and . under no circumstances will such fee exceed $197 , 500. 7 . Fees A. T.U.M.F. Fees B. Signalization Fee C. Drainage Fees D. Art in Public Places Fees, which fees shall be one half of one percent ( . 5%) of the total building valuation (valuation for building permit purposes) , with no maximum limit. KKR42075 11/9/94 Draft Dev. Agreement -3- E. The usual and customary fees of general application charged for processing of applications for permits and approvals pertaining to the development of the Project. KKR42075 11/9/94 Draft Dev. Agreement -4- EXHIBIT "E" ` [Reserved] KKR42075 11/9/94 Draft Dev. Agreement -1- EXHIBIT "F" DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT (to be inserted) KKR42075 11/9/94 Draft Dev. Agreement -1- EXHIBIT "E" Easement Agreement Recording Requested by and When Recorded Return to: Documentary Transfer Tax: $ None Revenue and Taxation Code 11922 Easement Agreement This Easement Agreement (this "Agreement") is made and entered into as of the day of , 199_ by and between THE PALM DESERT REDEVELOPMENT AGENCY (the "Agency") and The Madison Realty Partnership, Limited Partnership, a Delaware limited partnership (the "Developer") . RECITALS WHEREAS, Developer is the owner of that certain real property (the "Property") located in the City of Palm Desert, California and i more completely described in Exhibit A attached hereto and hereby made a part hereof; WHEREAS, Developer has developed a shopping center (the "Shopping Center") upon the Property. The current configuration of the Shopping Center is approximately as shown on the site plan (the "Site Plan") attached hereto as Exhibit B and hereby made a part hereof; WHEREAS, Agency desires to acquire certain rights for parking purposes over the parking areas located from time to time on the Property (which parking areas, together with any parking structures which may be located thereon, are hereinafter called "Parking Areas") ; WHEREAS, Developer desires to convey such rights to Agency in accordance with the terms and conditions contained herein; and WHEREAS, Agency and Developer desire to agree on certain other matters with respect to the Parking Areas. NOW, THEREFORE, in consideration of the foregoing, the covenants and promises set forth herein, and other good and valuable consideration (including but not limited to the payment by Agency to Developer, pursuant to that certain Amended and Restated Disposition, Development and Implementation Agreement between KKR42080 E-1 t 0 Developer and Agency dated 1994 , of the "Purchase Price" , as defined therein) , Developer and Agency agree as follows: 1. Easement/Control Over Parking Areas. Developer hereby grants and conveys to Agency a nonexclusive easement (the "Easement") over the Parking Areas for the Term (as defined in Paragraph 4 [Term] ) for Public Parking purposes. For the purposes of this Agreement, "Public Parking" shall mean parking which is fully accessible to all members of the public, without limitation as to their purpose for parking on the Parking Areas or their destination, except for limitations set forth in that certain Parking Management Plan (the "Parking Management Plan") attached hereto as Exhibit C, any modification to the Parking Management Plan that may be implemented by Developer, subject to the written approval of Agency, and any other limitations, rules and regulations that may be established by Developer, subject to the written approval of Agency. 2 . Character of Easement. The Easement granted herein is a nonexclusive easement in gross, to be held and enjoyed by Agency and its successors and assigns, in common with Developer and the occupants of the Shopping Center and their invitees. 3 . Location of the Parking Areas. The Parking Areas shall initially be located as shown on the Site Plan. Developer shall have the right to relocate the Parking Areas from time to time. Developer shall also have the right to reconfigure the Shopping Center, including but not limited to the right to change the location of, add or subtract buildings, and the right to change the size and layout of the Parking Areas and the parking spaces thereon; provided, however, that the Property shall continue to comply with the parking requirements (the "Parking Requirements") applicable to the Property pursuant to Paragraph IIIB7 and VE of Exhibit A of that certain Amended and Restated Development Agreement between the City of Palm Desert, California and Developer dated , 1994 , as it may be amended. 4 . Term. The term (the "Term") of this Agreement shall commence on the date of recordation of this Agreement and shall expire on the later to occur of (a) thirty (30) years after the date hereof or (b) the date on which the Property is no longer being operated as a Shopping Center in substantially the configuration of the Shopping Center as of the expiration of such thirty (30) year period, but in no event longer than fifty (50) years after the date hereof. Upon the expiration of this Agreement, this Agreement shall automatically terminate without further action by the parties hereto, but either party shall, promptly after receiving a request therefor from the other after the expiration of this Agreement, execute and deliver a termination agreement, in recordable form and otherwise in form reasonably satisfactory to both parties. Upon the expiration of this Agreement, the Parking Management Plan shall automatically KKR42080 E-2 terminate without further action by the parties hereto, but either party shall, promptly after receiving a request therefor from the other after the expiration of this Agreement, execute and deliver a termination agreement, in form reasonably satisfactory to both parties, with respect to the Parking Management Plan. 5. Maintenance of the Parking Areas. During the Term, Developer shall maintain, or cause to be maintained, in good repair the Parking Areas and all necessary landscaping, lighting, paving, directional signage and other appurtenances necessary to the maintenance of the Parking Areas. All maintenance of the Parking Areas shall be done in accordance with all applicable Federal, State and local statutes, ordinances, rules, standards and regulations. 6. Insurance and Indemnity. (a) During the Term, Developer shall furnish, or shall cause to be furnished, to Agency promptly after Agency's request therefor certificates of the following types of insurance: (i) . Comprehensive general liability (bodily injury and property damage) , blanket contractual liability, and personal injury liability, all with limits of not less than $2 , 000, 000 each and a combined single limit per occurrence basis of no less than $5, 000, 000, and workers compensation insurance. (ii) . Endorsements containing the following three provisions shall be obtained for the policies providing the above insurance: i A. Additional named insureds: "The Palm Desert Redevelopment Agency, the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees are added as additional named insureds with respect to this subject project and contract with the Agency. " B. Notice: "Said policy shall not terminate nor shall it be canceled or the coverage reduced until after thirty (30) days written notice is given to the Palm Desert Redevelopment Agency. " C. Primary coverage: "Said policy and coverage as is afforded to the Palm Desert Redevelopment Agency and the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees shall be primary insurance and not contributing with any other insurance maintained by the Palm Desert Redevelopment Agency or the City of Palm Desert. " Developer shall also furnish, or cause to be furnished, to Agency promptly after Agency ' s request therefor certificates of fire and extended insurance coverage with respect to any Parking Areas located upon the Shopping Center in an amount at least equal to the replacement cost of such Parking Areas, exclusive of the cost of foundations, excavations and footings. Any and all insurance policies required hereunder shall be obtained and maintained at all times from insurance companies admitted in the State of California and rated at least B+:VIII in Best ' s Insurance Guide. Any KKR42080 E-3 *Ale vr� f insurance maintained hereunder may be maintained under blanket policies, covering other risks and properties. (b) Developer agrees to and shall defend, indemnify and hold Agency and City and their respective officers, employees, contractors and agents harmless from and against all liability, loss, damage, costs, or expenses (including reasonable attorneys, fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall be directly or indirectly caused by any negligent or wrongful errors or omissions of the Developer or its agents, servants, employees, or contractors with respect to the construction, operation and maintenance of the Parking Areas. Developer shall not be responsible for, and such indemnity shall not apply to, any acts, errors, or omissions (or breach of this Agreement) of Agency or City or their respective agents, servants, employees, or contractors. 7 . Restoration After Casualty. In case of a fire or other casualty of the type included within the casualty insurance coverage required to be maintained hereunder resulting in damage or destruction to Parking Areas during the Term, Developer shall restore such Parking Areas as nearly as feasible to their condition prior to the casualty (except that Developer shall have the right to make reasonable alterations and Developer shall only be obligated to restore such Parking Areas to the extent necessary to comply with the Parking Requirements) . Notwithstanding the foregoing sentence, Developer shall have no obligation to restore any Parking Areas after the forty sixth (46th) year of the Term. In the event of a casualty which is not of the type included within the casualty insurance coverage required to be maintained hereunder (for example, an earthquake) resulting in damage or destruction to Parking Areas, Developer shall not be obligated to restore the Parking Areas; provided, however, that if such . casualty also resulted in damage or destruction to retail buildings within the Shopping Center and if Developer elects to restore such buildings, Developer shall also restore such Parking Areas, to the extent necessary to comply with the Parking Requirements 8 . Entire Agreement. This Agreement contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed. Any oral representations or modifications concerning this Agreement shall be of no force and effect. This Agreement may be amended only by a subsequent document in writing, signed by the party to be charged. 9 . Approvals. Approvals and consents required of Agency hereunder shall not be unreasonably withheld, and Agency' s approval or disapproval shall be given within the times set forth in this Agreement, or if no time is given, within thirty (30) days after request therefor. The failure of Agency to approve or disapprove within such time limits shall be deemed an approval. KKR42080 E-4 a 10. Attorney' s Fees. In the event of any action or proceeding relating to this Agreement or any breach thereof, the prevailing party shall be entitled to recover from the losing party, in addition to all other relief available to it, its reasonable attorneys ' fees and costs. 11. Binding Effect. This instrument shall be binding on and shall inure to the benefit of Developer and Agency, and their respective successors, assigns, heirs, executors and administrators. Notwithstanding the foregoing, no transferee or assignee of the rights and interests of Developer shall have any duty or obligation with respect to matters arising prior to the date of the assignment or transfer, and a transferee or assignee of any of the rights and interests of Developer pursuant to any of the Special Transactions (defined below) shall have no duty or obligation to perform any affirmative covenants of Developer under this Agreement, unless such affirmative covenants are expressly assumed in connection with the conveyance of such rights and . interests. In the event such affirmative covenants are so assumed by any transferee or assignee (in connection with a Special Transaction or otherwise) , no subsequent failure by such transferee or assignee (or any subsequent transferee or assignee) to perform or comply with such affirmative covenants shall be deemed a default by Developer hereunder and, similarly, no failure of Developer to perform or comply with its affirmative covenants which have not been so assumed shall constitute a default hereunder with respect to such transferee or assignee (or subsequent transferee or assignee) . The Special Transactions are the following transactions: 0 (a) The sale, ground leasing or transfer of any portion of the Property to any purchaser, transferee or tenant occupying at least 15, 000 square feet of gross leasable area in the Project ("Major") , provided such Major is an experienced retailer which generally acquires sites in retail centers for the purposes of erecting, constructing, maintaining and operating (or causing to be erected, constructed, maintained and operated) retail stores; (b) The conveyance or dedication of any portion of the Property to -the Agency, the City of Palm Desert, or other appropriate governmental agency, or the granting of easements or permits to facilitate the development of the Property; (c) The leasing of space for occupancy in the Shopping Center; (d) The sale, ground leasing or leasing of any portion of the Property and improvements thereon for development pads permitted pursuant to a precise plan approved by the City of Palm Desert or otherwise approved by the City of Palm Desert. KKR42080 E-5 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day first above written. AGENCY: PALM DESERT REDEVELOPMENT AGENCY By: Carlos Ortega Executive Director DEVELOPER: i THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership By: The Boorn Bennett Limited Partnership, an Ohio limited partner- ship, its general partner By: Boorn, Inc. , an Ohio corporation, its general partner By: John P. Boorn [ATTACH NOTARY ACKNOWLEDGMENTS] KKR42080 E-6 i EXHIBIT "E" Easement Agreement Recording Requested by and When Recorded Return to: Documentary Transfer Tax: $ None Revenue and Taxation Code 11922 Easement Agreement This Easement Agreement (this "Agreement") is made and entered into as of the day of , 199_ by and between THE PALM DESERT REDEVELOPMENT AGENCY (the "Agency") and The Madison Realty Partnership, Limited Partnership, a Delaware limited partnership (the "Developer") . RECITALS WHEREAS, Developer is the owner of that certain real property (the "Property") located in the City of Palm Desert, California and more completely described in Exhibit A attached hereto and hereby made a part hereof; WHEREAS, Developer has developed a shopping center (the "Shopping Center") upon the Property. The current configuration of the Shopping Center is approximately as shown on the site plan (the "Site Plan") attached hereto as Exhibit B and hereby made a part hereof; WHEREAS, Agency desires to acquire certain rights for parking purposes over the parking areas located from time to time on the Property (which parking areas, together with any parking structures which may be located thereon, are hereinafter called "Parking Areas") ; WHEREAS, Developer desires to convey such rights to Agency in accordance with the terms and conditions contained herein; and WHEREAS, Agency and Developer desire to agree on certain other matters with respect to the Parking Areas. NOW, THEREFORE, in consideration of the foregoing, the covenants and promises set forth herein, and other good and valuable consideration (including but not limited to the payment by Agency to Developer, pursuant to that certain Amended and Restated Disposition, Development and Implementation Agreement between KKR42079 E-1 Developer and Agency dated 1994 , of the "Purchase Price" , as defined therein) , Developer and Agency agree as follows: 1. Easement/Control Over Parking Areas. Developer hereby grants and conveys to Agency a nonexclusive easement (the "Easement") over the Parking Areas for the Term (as defined in Paragraph 4 [Term] ) for Public Parking purposes. For the purposes of this Agreement, "Public Parking" shall mean parking which is fully accessible to all members of the public, without limitation as to their purpose for parking on the Parking Areas or their destination, except for limitations set forth in that certain Parking Management Plan (the "Parking Management Plan") attached hereto as Exhibit C, any modification to the Parking Management Plan that may be implemented by Developer, subject to the written approval of Agency, and any other limitations, rules and regulations that may be established by Developer, subject to the • written approval of Agency. 2 . Character of Easement. The Easement granted herein is a nonexclusive easement in gross, to be held and enjoyed by Agency and its successors and assigns, in common with Developer and the occupants of the Shopping Center and their invitees. 3 . Location of the Parking Areas. The Parking Areas shall initially be located as shown on the Site Plan. Developer shall have the right to relocate the Parking Areas from time to time. Developer shall also have the right to reconfigure the Shopping Center, including but not limited to the right to change the location of, add or subtract buildings, and the right to change the size and layout of the Parking Areas and the parking spaces thereon; provided, however, that the Property shall continue to comply with the parking requirements (the "Parking Requirements") applicable to the Property pursuant to Paragraph IIIB7 and VE of Exhibit A of that certain Amended and Restated Development Agreement between the City of Palm Desert, California and Developer dated , 1994 , as it may be amended. 4 . Term. The term (the "Term") of this Agreement shall commence on the date of recordation of this Agreement and shall expire on the later to occur of (a) thirty (30) years after the date hereof or (b) the date on which the Property is no longer being operated as a Shopping Center in substantially the configuration of the Shopping Center as of the expiration of such thirty (30) year period, but in no event longer than fifty (50) years after the date hereof. Netw-ithstanding , Beveleper shall have the fight te terminate this Agreefaent, at any time after ten (19', years after- the date he-reef-, by sending -a n et-i-e e—e€—s u eh ter-m-, n e--" (whieh date shall be at least thirtY E391 days after the date ef- the Early Terminatien Netiee) --and shall state that: Develeiger KKR42079 E-2 ealeulated}3'y ems s.Y g the -Purre ` e Price pald--by _Ageney of whi eh isthenumberef years (er t ereef) frem and year after the date hereef and the denefainater ef whieh is fifty (59) . EAgeneY requests the ei-Ji.-i-inati-Jea. of- Developer' s right to eausean - Upon the expiration er ea=__cr termination of this Agreement, this Agreement shall automatically terminate without further action by the parties hereto, but either party shall, promptly after receiving a request therefor from the other after the expiration er earlier terrinatien-of this Agreement, execute and deliver a termination agreement, in recordable form and otherwise in form reasonably satisfactory to both parties. Upon the expiration er earlier termination of this . Agreement, the Parking Management Plan shall automatically terminate without further action by the parties hereto, but either party shall, promptly after receiving a request therefor from the other after the expiration er earliert_ a-tien-of this Agreement, execute and deliver a termination agreement, in form reasonably satisfactory to both parties, with respect to the Parking Management Plan. 5. Maintenance of the Parking Areas. During the Term, Developer shall maintain, or cause to be maintained, in good repair J the Parking Areas and all necessary landscaping, lighting, paving, directional signage and other appurtenances necessary to the maintenance of the Parking Areas. All maintenance of the Parking Areas shall be done in accordance with all applicable Federal, State and local statutes, ordinances, rules, standards and regulations. 6 . Insurance and Indemnity. (a) During the Term, Developer shall furnish, or shall cause to be furnished, to Agency promptly after Agency' s request therefor certificates of the following types of insurance: (i) . Comprehensive general liability (bodily injury and property damage) , blanket contractual liability, and personal injury liability, all with limits of not less than $2 , 000, 000 each and a combined single limit per occurrence basis of no less than $5, 000, 000, and workers compensation insurance. (ii) . Endorsements containing the following three provisions shall be obtained for the policies providing the above insurance: A. Additional named insureds: "The Palm Desert Redevelopment Agency, the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees are added as additional named insureds with respect to this subject project and contract with the Agency. " B. Notice: KKR42079 E-3 "Said policy shall not terminate nor shall it be canceled or the coverage reduced until after thirty (30) days written notice is given to the Palm Desert Redevelopment Agency. " C. Primary coverage: "Said policy and coverage as is afforded to the Palm Desert Redevelopment Agency and the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees shall be primary insurance and not contributing with any other insurance maintained by the Palm Desert Redevelopment Agency or the City of Palm Desert. " Developer shall also furnish, or cause to be furnished, to Agency promptly after Agency's request therefor certificates of fire and extended insurance coverage with respect to any Parking Areas located upon the Shopping Center in an amount at least equal to the replacement cost of such Parking Areas, exclusive of the cost of foundations, excavations and footings. Any and all insurance policies required hereunder shall be obtained and maintained at all times from insurance companies admitted in the State of California and rated at least B+:VIII in Best' s Insurance Guide. Any insurance maintained hereunder may be maintained under blanket policies, covering other risks and properties. (b) Developer agrees to and shall defend, indemnify and hold Agency and City and their respective officers, employees, contractors and agents harmless from and against all liability, loss, damage, costs, or expenses (including reasonable attorneys ' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall be directly or indirectly caused by any negligent or wrongful errors or omissions of the Developer or its agents, servants, employees, or contractors with respect to the construction, operation and maintenance of the Parking Areas. Developer shall not be responsible for, and such indemnity shall not apply to, any acts, errors, or omissions (or breach of this Agreement) of Agency or City or their respective agents, servants, employees, or contractors. 7 . Restoration After Casualty. In case of a fire or other casualty of the type included within the casualty insurance coverage required to be maintained hereunder resulting in damage or destruction to Parking Areas during the Term, Developer shall restore such Parking Areas as nearly as feasible to their condition prior to the casualty (except that Developer shall have the right to make reasonable alterations and Developer shall only be obligated to restore such Parking Areas to the extent necessary to comply with the Parking Requirements) . Notwithstanding the foregoing sentence, Developer shall have no obligation to restore any Parking Areas after the forty sixth (46th) year of the Term. In the event of a casualty which is not of the type included within the casualty insurance coverage required to be maintained hereunder (for example, an earthquake) resulting in damage or destruction to Parking Areas, Developer shall not be obligated to restore the KKR42079 E-4 Parking Areas; provided, however, that if such casualty also resulted in damage or destruction to retail buildings within the Shopping Center and if Developer elects to restore such buildings, Developer shall also restore such Parking Areas, to the extent necessary to comply with the Parking Requirements 8. Entire Agreement.. This Agreement contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed. Any oral representations or modifications concerning this Agreement shall be of no force and effect. This Agreement may be amended only by a subsequent document in writing, signed by the party to be charged. 9 . Approvals. Approvals and consents required of Agency hereunder shall not be unreasonably withheld, and Agency' s approval or disapproval shall be given within the times set forth in this Agreement, or if no time is given, within thirty (30) days after request therefor. The failure of Agency to approve or disapprove within such time limits shall be deemed an approval. 10. Attorney' s Fees. In the event of any action or proceeding relating to this Agreement or any breach thereof, the prevailing party shall be entitled to recover from the losing party, in addition to all other relief available to it, its reasonable attorneys ' fees and costs. 11. Binding Effect. This instrument shall be binding on and shall inure to the benefit of Developer and Agency, and their respective successors, assigns, heirs, executors and administrators. Notwithstanding the foregoing, no transferee or assignee of the rights and interests of Developer shall have any duty or obligation with respect to matters arising prior to the date of the assignment or transfer, and a transferee or assignee of any of the rights and interests of Developer pursuant to any of the Special Transactions (defined below) shall have no duty or obligation to perform any affirmative covenants of Developer under this Agreement, unless such affirmative covenants are expressly assumed in connection with the conveyance of such rights and interests. In the event such affirmative covenants are so assumed by any transferee or assignee (in connection with a Special Transaction or otherwise) , no subsequent failure by such transferee or assignee (or any subsequent transferee or assignee) to perform or comply with such affirmative covenants shall be deemed a default by Developer hereunder and, similarly, no failure of Developer to perform or comply with its affirmative covenants which have not been so assumed shall constitute a default hereunder with respect to such transferee or assignee (or subsequent transferee or assignee) . The Special Transactions are the following transactions: (a) The sale, ground leasing or transfer of any portion of the Property to any purchaser, transferee or tenant occupying at least 15, 000 square feet of gross leasable area in the Project ("Major") , provided such Major is an experienced retailer which generally acquires sites in retail centers for the purposes of KKR42079 E-5 erecting, constructing, maintaining and operating (or causing to be erected, constructed, maintained and operated) retail stores; (b) The conveyance or dedication of any portion of the Property to the Agency, the City of Palm Desert, or other appropriate governmental agency, or the granting of easements or permits to facilitate the development of the Property; (c) The leasing of space for occupancy in the Shopping Center; (d) The sale, ground leasing or leasing of any portion of the Property and improvements thereon for development pads permitted pursuant to a precise plan approved by the City of Palm Desert or otherwise approved by the City of Palm Desert. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day first above written. AGENCY: PALM DESERT REDEVELOPMENT AGENCY By: Carlos Ortega j Executive Director DEVELOPER: THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership By: The Boorn Bennett Limited Partnership, an Ohio limited partner- ship, its general partner By: Boorn, Inc. , an Ohio corporation, its general partner By: John P. Boorn [ATTACH NOTARY ACKNOWLEDGMENTS] KKR42079 E-6 City of Palm Desert 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE (619)346-0611 FAX(619)340-0574 November 4, 1994 Mr. Philip Smith Madison Realty/Sunrise Co. 42-600 Cook Street Palm Desert, California 92260 Dear Mr. Smith: Subject: Declaration of Environmental Impact and Amendment of an Approved Development Agreement Associated with the Ahmanson Commercial Development Plan Increasing the Allowable Gross Leasable Area from 167,0000 Square Feet to 197,000 Square Feet Including 25% Restaurant for Site Area 5, A 10.3 Acre Parcel on the South Side of E1 Paseo Between San Pablo Avenue and Larkspur Lane At its regular meeting of October 27, 1994, the Palm Desert City Council, by Minute Motion, passed Ordinance No. 764 to second reading and directed staff to meet with the developer to come to an agreement relative to improvements to be made on streets to the north of the project. Enclosed is a copy of the staff report for your records . If you have any questions or require any additional information, please do not hesitate to contact us. Si erely, /7 SHEILA R. GI LIGAN, C CITY CLERK/P6BLIC INFO TION OFFICER SRG:mes Enclosure (as noted) Recycled Paper CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT TRANSMITTAL LETTER I . TO: Honorable Mayor and City Council II. REQUEST: Approval of a Negative Declaration of Environmental Impact and amendment of an approved Development Agreement associated with the Ahmanson Commercial Development Plan increasing the allowable gross leasable area from 167,000 square feet to 197,000 square feet including 25% restaurant for site area 5, a 10 . 3 acre parcel on the south side of E1 Paseo between San Pablo Avenue and Larkspur Lane. III. APPLICANT: Madison Realty/Sunrise Co. c/o Philip Smith 42-600 Cook Street Palm Desert, CA 92260 IV. PROJECT TITLE: Ahmanson Commercial Development Plan Amended and Restated Development Agreement V. DATE: October 27, 1994 VI. CONTENTS: A. Staff Recommendation B. Discussion C. Draft Ordinance No. 764 D. Planning Commission Minutes dated October 4, 1994 E. Planning Commission Resolution No. 1663 F. Planning Commission Staff Report dated October 4, 1994 ---------------------------------------------------------------------- A. STAFF RECOMMENDATION: Adopt Ordinance No. 764 approving a Negative Declaration of Environmental Impact and Amended and Restated Development Agreement for the commercial development on the south side of E1 Paseo between San Pablo and Larkspur Lane. B. BACKGROUND: In 1989 the city approved a Development Agreement and certified an EIR covering the development of four sites within the city' s commercial core and one site to be dedicated open space. That agreement led to the development of Town Center Plaza (Trader Joe Is) , Desert Crossing, and the dedication of 55 open space acres west of Desert Crossing. The remaining undeveloped sites include the 12 acres at the southwest corner of E1 Paseo and Highway 111 AHMANSON COMMERCIAL DEVELOPMENT PLAN/ AMENDED AND RESTATED DEVELOPMENT AGREEMENT OCTOBER 27, 1994 and the subject site, 10 .3 acres on E1 Paseo ( formerly the Sunlodge property) . The agreement established development standards, fees and exactions which would be required for the development of each site over the ten year term. Exactions included those improvements required by city ordinance or specified as project specific mitigations in the EIR. The agreement also set forth minimum gross leasable area entitlements for each site which served as the basis for the EIR. Those floor area entitlements were subject to compliance with all applicable zoning and development standards which existed in 1989 . With this amendment the project becomes subject to any standards adopted since 1989 and the ten year term is extended from the new effective date. The original floor area entitlements were simply those proposed by Ahmanson. They were reviewed by staff and to the extent that they were within the range of GLA/site area ratios typically achieved under our ordinances . For site area 5, the entitlement was set at 167,000 to be developed per C-1 zoning standards . The amendment would keep the entitlement at 167,000 but provides for an additional 30,000 square feet for a total of 197,000 if Saks Fifth Avenue or a comparable retailer (as determined by the city) is included in the project. The parking requirement would be based upon the C-1 retail 4 per 1000 ratio. Up to 25% of GLA could be devoted to restaurant use without an increase in the parking requirement. An additional 200 parking spaces will be required by the agreement subject to terms included in amended and restated Disposition, Development and Implementation Agreement (DDIA) currently being processed through the redevelopment agency. While the original DDIA provided for RDA reimbursement for the costs of constructing 200 additional spaces, the new agreement specifies the payment of $5,000,000 for the purchase of a public easement and the creation of a parking management plan. With the additional spaces, the project will be parked at 5 per 1000. The DDIA will also contain an "anti raiding" section requiring the developer to find suitable replacements for existing businesses within the city which relocate into the new project. 2, AHMANSON COMMERCIAL DEVELOPMENT PLAN/ AMENDED AND RESTATED DEVELOPMENT AGREEMENT OCTOBER 27, 1994 C. ANALYSIS: The project ultimately resulting from the development agreement must still comply with all current zoning and development standards . Project specific design analysis will occur when a development application is filed and reviewed as part of the precise plan process . The Development Agreement amendment was therefore analyzed within the context of CEQA to determine whether the increased GLA would significantly increase the impacts _ identified in the EIR to the point of requiring additional mitigation. The EIR had identified traffic related impacts as the primary effect of the project. The original EIR traffic consultant was directed to repeat the analysis with the increased floor area using the identical methodology employed in the EIR. The EIR traffic analysis based on the 4th Edition of Tri Generation published by The Institute of Transportation Engineers (ITE) forecast 10,370 daily trips from the original 167,000 square foot project. Subsequently, ITE revised and refined their forecasts in the 5th Edition based on approximately 100 new shopping center studies . These studies indicated a generally lower traffic generation rate than was previously forecast. While the project floor area will increase 20% from 167,000 square feet to 197,000 square feet, traffic generation as forecast by the 5th Edition will increase only 4% to 10,815 when compared to the EIR analysis. This increase does not change the traffic mitigation recommended by the EIR. These include: A. Long-term (Year 2000) Mitigation Measures Highway 111 @ Monterey Avenue-State Route 74 Requires the addition of a second northbound left-turn lane on SR-74 and a second eastbound and westbound left-turn lane on Highway 111 (same as 1989 study) . Requires the addition of a third eastbound and westbound through lane on Highway 111 for a total of six through lanes (three in each direction) . Highway 111 @ San Pablo Convert exclusive eastbound and westbound right-turn lanes on Highway 111 into a third eastbound and westbound through lane one Highway 111 (same as 1989 study) . 3 AHMANSON COMMERCIAL DEVELOPMENT PLAN/ AMENDED AND RESTATED DEVELOPMENT AGREEMENT OCTOBER 27, 1994 Highway 111 @ San Luis 'Rey Re-stripe the northbound approach of San Luis Rey at Highway 111 to provide an exclusive left-turn lane (same as 1989 study) . Requires the addition of a third eastbound and westbound through lane on Highway 111 for a total of six through lanes (three in each direction) (same as 1989 study) . E1 Paseo @ State-Route 74 Re-stripe the northbound approach of State-Route 74 at E1 Paseo to provide a second left-turn lane (same as 1989 study) . B. Project-specific Improvements Highway 111 @ San Pablo Requires the addition of a second northbound through lane on San Pablo at Highway 111 (same as 1989 study) . E1 Paseo @ San Pablo Avenue Re-stripe the northbound approach of San Pablo at E1 Paseo to provide an exclusive right-turn lane. Restrict on-street parking on San Pablo adjacent to the project site to provide storage for the right-turn lane. After reviewing the study, the city engineer has recommended the following additional traffic improvements: * Traffic signal operation modifications to provide for 8-phase function with split phasing as an alternative dependent upon Caltrans requirements * Restripe/reconstruct southbound San Pablo Avenue to provide left turn, through and right turn lanes * Modification of existing median left turn pockets at E1 Paseo/San Pablo Avenue and El Paseo/Larkspur Lane to provide additional vehicle stacking capacity The entitlement for 25% restaurant use is above the 20% standard which the commission has traditionally used to approve restaurant conditional use permit applications for projects parked according to 4 per 1000 C-1 standards. With the additional 200 spaces, the project 's parking ratio will fall within a range we have found to be acceptable. 4 AHMANSON COMMERCIAL DEVELOPMENT PLAN/ AMENDED AND RESTATED DEVELOPMENT AGREEMENT OCTOBER 27, 1994 A public hearing was held before the planning commission October 4, 1994 at which time they adopted a resolution recommending to city council approval of the negative declaration and amended and restated development agreement with the additional mitigation measures as proposed by the city engineer. Prepared by: Reviewed and Approved by: - - PD/tm CITY COUNCIL ACTION: APPROVED DENIED RECEIVED OTHER Ord. No. 764 passed to second reading and directed staff to meet with the developer to come to an agreement relative to i'TINr` DATE L improvements to be made on streets to the AYES: ' - north of the project. NOES ABSENT: ABSTAIN: VERIFIED BY: Y Original on File t ity Clerk' s Uriice 5 City of Palm Desert 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)340-0574 November 4, 1994 Mr. Philip Smith Madison Realty/Sunrise Co. 42-600 Cook Street Palm Desert, California 92260 Dear Mr. Smith: Subject: Contract No. R09190 - Agreement Between the Redevelopment agency and Madison Realty Partnership At its regular meeting of October 27, 1994, the Palm Desert Redevelopment Agency Board, by Minute Motion, adopted the subject agreement conceptually with Madison Realty Partnership as amended by staff and the Board, including amendment of the provision relative to attracting businesses to the center to reflect that that provision shall be in effect until 80% of the facility is leased or one year from the date of the center is open, whichever is later. Enclosed are three copies of this agreement. Please have all three signed, notarized and return them to us at your earliest convenience. We will then forward a fully-executed copy to you for your records. If you have any questions or require any additional information, please do not hesitate to contact us. 4GILLI , i qrely,EILA R. CMC SECRETARY/PUBLIC INFORMA N OFFICER SRG:mes Enclosures (as noted) Reayc�ed Paper • low INTEROFFICE- MEMORANDUM CONTRACT NO. C09190 CITY OF PALM DESERT DATE: OCTOBER 27, 1994 TO: EXECUTIVE DIRECTOR, HONORABLE CHAIRMAN AND MEMBERS OF REDEVELOPMENT AGENCY BOARD FROM: DAVE YRIGOYEN, SENIOR ADMINISTRATIVE ASSISTANT SUBJECT: AGREEMENT BETWEEN REDEVELOPMENT AGENCY AND MADISON REALTY PARTNERSHIP Recommendation That the Agency Board adopt the agreement conceptually with Madison Realty Partnership, which contains the provisions outlined in the staff report authorizing the Executive Director to negotiate and execute the final agreement. Background: Agency staff has been working for quite some time on the development of the Via Paseo Project which is located on 10 acres between San Pablo and Larkspur on El Paseo. An existing DDIA between the Agency and ACD2 provided that the Agency would participate in the project to provide 200 public parking spaces. Madison Realty Partnership has requested to assume the role of Developer for the project and to negotiate certain provisions with regard to the existing DDIA. The basic characteristics of the agreement are as follows: 1 . The Developer will provide 200 public parking spaces within the overall development of the site. 2. The Agency will purchase a parking easement covering the entire parking area of the development. 3 . The entire parking area will be controlled by a Parking Management Plan which is to be approved by the Director of Planning and the Executive Director of the Redevelopment Agency. 4. The cost to the Agency will be Five Million Dollars ($5,000,000) . 5. The development will consist of 167,000 sq. ft. with an additional 30,000 sq. ft. for a major anchor as may be identified. 6. The Developer will begin construction on the site within 3. 5 years and complete the ° project within 5 -- if not, the agreement becomes null and void. 7. The Developer will construct no less than the parking facilities and 100,000 sq. ft. of commercial area prior to being paid for the parking improvements. 8. The Developer will not be allowed to transfer this agreement, except to an affiliate of which the Developer is a major partner. 9. The Developer will agree to a nonraiding provision as identified in Section 7 .5 of the agreement, stating that if any business of 1,000 sq. ft. or more, which has relocated to the development from any site within the City, ceases to operate at its previous site within 12 months following such relocation, then the Developer shall replace that business at its previous site with a "Satisfactory Replacement Business" . These are the basic provisions of the proposed agreement. Staff would encourage the Agency Board to add any issues and topics of concern to the basic concepts. It is the Developer' s request that we consider this agreement at this time due to basic business points with the project. As stated earlier, the basic agreement issues have been worked out. It is anticipated that the legal points should take a minimal amount of time. REVIEWED AND CONCUR: ave /�A go nSenio nistrative Assistant Executiv Director mh *** BY RDA ***Approved as amended by staff & the RDA Board, including amendment of the provision relative to attracting businesses 0 N to hte center to reflect that that provision shall be in effect until 80% of the facility is leased or one year from VERIFIED BY- _ the date the center is open, whichever is later. Origina? on file with City Clerk's Office 2 I ------------------------------------------------------------ (Space Above for Recorder's Use Only) AMENDED AND RESTATED DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT THIS AMENDED -AND RESTATED DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT (hereinafter referred to as the "Agreement") is entered into on October 27 , 1994, by and between THE PALM DESERT REDEVELOPMENT AGENCY (the "Agency") and THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership, and its successors and assigns (the "Developer") . The Agency and the Developer agree as follows: RECITALS This Agreement is entered into on the basis of the following facts, understanding and intentions of the Parties: A. Health and Safety Code Sections 33000, et. seq. , (the "Redevelopment Legislation") authorize the Agency to enter into agreements with property owners and the purchasers of property for the purpose of furthering the development of property within a project area in conformity with the development conditions set forth in the redevelopment plan pertaining to such project area, KKR41509 10-17-94 DRAFT DDiA and provide for die Agency's part icipation` 4i such development, including, but not limited to, the construction of public improvements related thereto and the manner of the payment of the costs thereof, and the acquisition by the Agency of real property and real property interests necessary for such development. B. The Agency has heretofore prepared and approved the redevelopment plan attached hereto as Exhibit A (the "Redevelopment Plan") for its Project Area No. 1 (the "Project Area") , which Project Area encompasses the real property described in Exhibit B attached hereto (the "Property") to be developed pursuant to this Agreement and the Development Agreement (as hereinafter defined) . C. The City of Palm Desert (the "City") and the Developer have entered into that certain Amended and Restated Development Agreement dated October 27 1994 (as said agreement may hereafter be amended, the "Development Agreement") , which Development Agreement is attached hereto as Exhibit C and relates to and benefits the Property, and by which the City has acknowledged that the development of the Property as set forth therein and herein is consistent with and in furtherance of the development goals and policies of the City. D. ACD2 , a California corporation (as the successor in interest to Ahmanson Commercial Development Company) and the Agency have previously entered into that certain Disposition, Development and Implementation Agreement dated May 4 , 1990, as amended and restated by that certain Amended and Restated Disposition, Development and Implementation Agreement dated December 30, 1993 KKR41509 10-17-94 DRAFT DD[A -2- A (collectively, 66d "DDIA") , by which the ` gency made certain findings and agreed to certain procedures and such findings and procedures relate in part to and are of benefit to the Property. As of the Effective Date (as hereinafter defined) , the terms and conditions of the DDIA which are not included in this Agreement shall have no force or effect upon, and shall not be binding upon, Developer or the Property; provided, however, that in any event the DDIA shall remain in full force and effect with respect to all properties, other than the Property, which are subject thereto. E. Pursuant to that certain Agreement of Purchase and Sale (the "Purchase Agreement") between Developer, as buyer, and ACD2 , as seller, dated May 20, 1994 , Developer agreed to purchase the Property from ACD2 , and also agreed to assume and accept all of the obligations, duties, rights and interests which relate to the Property under the DDIA, as such obligations, duties, rights and interests are hereinafter set forth in this Agreement. F. The Agency has determined that the development of the Property in the manner provided herein and in the Development Agreement is in conformance with and in furtherance of the Redevelopment Plan. G. The development of the Property in the manner described herein and in the Development Agreement will require a major investment by the Developer, and the Agency has determined that the public benefits to be derived from such development justify the Agency entering into this Agreement with respect to such development. KKR41509 10-17-94 DRAFT DDIA -3- H. Thy` Agency has found and Idttermined that the development and construction of the Minimum Improvements (defined in Section 1.4 hereof) and the Agency's purchase of the Parking Rights (defined in Section 5. 1 hereof) are of benefit to the entire Project Area and are consistent with the purposes of and authorized by the Redevelopment Plan and the Redevelopment Legislation. I. In order to effectuate the foregoing, the parties desire to enter into this Agreement in order to amend and restate in its entirety the DDIA with respect to the Property. NOW, THEREFORE, pursuant to the authority contained in the Redevelopment Legislation and the Redevelopment Plan, and in consideration of the mutual covenants and promises herein contained, the parties agree as follows: 1. DEFINITIONS. 1. 1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1. 2 Mortgage. Collectively, any mortgage, deed of trust, sale and leaseback arrangement in which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which all or part of the Property, or an interest in it, is pledged as security. KKR41509 10-17-94 DRAFT DDIA -4- R ` 1.3 Mogagee. The holder of .Mortgage or any beneficial interest under a Mortgage or the purchaser at a judicial or non-judicial foreclosure sale pursuant to the remedies provided in the Mortgage, or any person or entity that acquires title to the Property or any part thereof pursuant to a deed in lieu of : :_ :::.>.;°''<°. >:>:>:`°:;:.>:: foreclosure <: :> :::.::e ; . 1.4 Minimum Improvements. Minimum Improvements shall mean those certain improvements located on the Property and described as follows: (I� ) The construction of no less than 100, 000 square feet of gross leasable area of the commercial/retail development as described in Exhibit A to the Development Agreement, as such development is further refined, enhanced or modified pursuant to the Development Agreement. At least 30, 000 square feet of said 100, 000 square feet of gross leasable area shall be occupied by ; (i) a single lessee? or ............................ :;combination of lessees, each occupying no less ............................ ............................ ............................ than 5, 000 square feet of gross leasable area. (gib) The construction of the private parking facilities on the Property, as described in Exhibit A of the Development Agreement The parking facilities shall contain, at a minimum, the amount of parking spaces required by Sections III.B. (7) and V.E of Exhibit A to the Development Agreement. KKR41509 10-17-94 DRAFT DDIA -5- 1.5 Chain Other Terms. Certain bier terms shall have the meanings set forth for such terms in this Agreement. 2. EFFECTIVE DATE; TERM; ASSIGNMENT. 2 . 1 Effective Date. This Agreement has been. entered into by the parties as of the date and year first above written (the "Execution Date") . This Agreement shall become effective on the date on which the Developer acquires the Property from ACD2 pursuant to the Purchase Agreement (the "Effective Date") . Notwithstanding the foregoing, if the Effective Date shall not have occurred prior to the date which is six (6) months from the Execution Date, then this Agreement shall be null and void, ab initio, and shall terminate automatically. In such event, the Property shall be subject to the benefits and obligations of the DDIA as they existed on the Execution Date. 2 . 2 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on May 1, 2000, unless sooner terminated or extended as hereinafter provided. ........................................................................................ [Consent tc Ass�tgnment tTo be provided by means of a separate _... ........................................................................................ agreement. ] 3 . GENERAL DEVELOPMENT OF THE PROPERTY; AGENCY FINDINGS AND ACTIONS. The City and the Developer have entered into the Development Agreement which provides for the development of the Property, and the terms and conditions under and with respect to which the Developer shall be entitled to develop the Property and KKR41509 10-17-94 DRAFT DDIA -6- receive all perms, certificates and othetOO'entitlements to be issued or provided by the City and necessary for the construction, use and occupancy of the Property. Notwithstanding any provision to the contrary contained herein, the Agency agrees that, to the extent permitted by law, the terms and provisions of the Develop- ment Agreement shall be controlling as to all matters pertaining to the permitting and entitlement of the Property, the timing of the development of the Property, and the permitted uses to which the Developer may put the Property. Any successor in interest to the Developer under and pursuant to the terms of the Development Agreement shall be deemed to be the "Developer" under this Agreement for all purposes and only those purposes, of Section 3 hereof, and any such successor in interest shall be entitled to the benefits provided under Section 3 hereof; provided, however, that the transfer or succession of all other of Developer' s rights, interests, covenants and obligations under this Agreement, shall be governed by the applicable provisions of Sections 4 . 10 and 12 of this Agreement. 3 . 1 Agency Findings. The Agency has reviewed the Development Agreement and hereby finds and determines that the development of the Property in the manner provided and as contemplated therein will be in furtherance of and consistent with the goals and policies of the Redevelopment Plan, and in conformance with the requirements of the development guidelines contained therein as adopted by the Agency pursuant thereto, and that the process of permitting and entitlement set forth in the Development Agreement is consistent with the permitting and entitlement process contained in such development guidelines. KKR41509 10-17-94 DRAFT DDIA -7- Based won the foregoing finding; the Agency hereby agrees that it will take all reasonable actions necessary under the Redevelopment Plan and the development guidelines contained therein to insure that the benefits afforded to the Developer by the Development Agreement with respect to the permitting and entitlement of the Property, the timing of the development of the Property, and the permitted uses to which the Developer may put the Property, will not be impaired as a result of Agency action or inaction; provided, however, that such obligations of the Agency shall be expressly conditioned upon the satisfaction of all conditions precedent, concurrent, and subsequent to such obligations as provided by this Agreement and the Development Agreement. The Agency hereby agrees that, except as to charges, fees, and improvements expressly addressed herein the implementation and furtherance of the goals and policies of the Redevelopment Plan and the development guidelines will not require the imposition of any Exactions (as defined in the Development Agreement) , the construction of any public improvements by the Developer, or the reservation or dedication of land by the Developer for public purposes. In addition, the Agency hereby agrees that the provisions of the Development Agreement pertaining to the process for the application of all permits, certificates and approvals necessary for the development of the Property (including, but not limited to, the development and construction of the Minimum Improvements) , the fees charged for the processing of such applications and the standards upon which such permits, certificates and approvals will be issued, are consistent with and KKR41509 10-17-94 DRAFT DDIA -8- satisfy the requirements of the Redevelopment Plan and the development guidelines, and that the Agency, except to the extent that the Agency is otherwise required to do so by either State statute or a final decision of a court of competent jurisdiction; (i) will take no actions with respect to the Property in implementing the provisions of the Redevelopment Plan or such development guidelines which are inconsistent with such provisions of the Development Agreement, or which would otherwise impair or delay the development of the Property or increase the costs to be incurred by the Developer with respect thereto, unless the impairment or increase in costs is insubstantial, or (ii) after the date hereof and without receiving the prior written approval of the Developer, adopt or approve an amendment to the Redevelopment Plan or the development guidelines which would impair Developer's rights under this Agreement or the Development Agreement unless the impairment is insubstantial. 4 . CONSTRUCTION OF MINIMUM IMPROVEMENTS AND USE OF THE PROPERTY. 4 . 1 Agreement to Construct Minimum Improvements. Developer agrees that if, in the exercise of its discretion as provided in the Development Agreement, it develops the Project (as defined in the Development Agreement) , it will develop and construct, at its sole cost, expense and liability, the Minimum Improvements in accordance with any and all plans, drawings, and related documents submitted to and approved by the City in KKR41509 10-17-94 DRAFT DDIA -9- connection with development of the Propey in accordance with the Development Agreement (collectively, the " Minimum Improvement Plans") . The Developer shall submit to the Agency a copy of all Minimum Improvement Plans contemporaneously with any such submission to the City. The Agency shall have the right to review and approve the Minimum Improvement Plans for the purpose of determining that the Minimum Improvements will be constructed in a. manner consistent with the goals and policies of the Redevelopment Plan; provided, however, that (1) the Agency shall be deemed to + have approved any Minimum Improvement Plan if it fails to respond in writing to the Developer's submission thereof within 20 days after such submission; and (2) the Agency shall not unreasonably withhold or delay its approval, and shall not withhold or delay its approval in any event if either (a) all necessary discretionary approvals, consents, and entitlements have been obtained by Developer from the City with respect to the matter to be approved by the Agency or (b) the Minimum Improvement Plans submitted are, as determined by the Agency, a logical evolution or progression of and not in conflict with the Minimum Improvement Plans theretofore approved by the Agency. Any disapproval by the Agency shall state in writing in reasonable detail the reasons for disapproval and the Changes which the Agency requests to be made. Such reasons and such changes must be consistent with any items previously approved or deemed approved hereunder. The Agency agrees that it will not impose any condition upon the construction of the Minimum Improvements or require any modification of the Minimum Improvement Plans which will conflict with any City requirement applicable to the construction of the KKR41509 10-17-94 DRAFT DDIA -10- Minimum Improvelt*41ts. Once any submissio is approved by the Agency, the same shall be in accordance with the Redevelopment Plan and in compliance with the provisions of this Agreement, and shall not be subsequently disapproved unless required by law upon the advice of the Agency's legal counsel. 4.2 Cost of Construction: Reporting to AcTency. The Developer shall be responsible for all costs of developing and constructing the Minimum Improvements. During periods of construction, the Developer shall submit to the Agency a written report of the progress of the construction when and as reasonably requested by the Agency (but not more frequently than quarterly) . The report shall be in such form and detail as may be reasonably required by the Agency. 4 . 3 [Reserved] 4 .4 [Reserved] 4 . 5 Indemnification During Construction: Bodily Injury and Property Damage Insurance. During the period commencing upon the date of commencement of construction of the Minimum Improve- ments and ending on such date as the Agency is required to issue ...................................... the Minimum Improvements Certificate of ^-- r'_et_e„ bt; ar 'e, and ....:..... in addition to any similar provisions in the Easement Agreement, the Developer agrees to and shall defend, indemnify and hold the Agency and the City and their respective officers, employees, contractors and agents harmless from and against all liability, loss, damage, costs, or expenses (including reasonable attorneys' KKR41509 10-17-94 DRAFT DDIA fees and court cis) arising from or as a rYsult of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall occur directly or indirectly as a result of this Agreement,— 0 '' '? : a . ia which ::::.::::: :.: n . shall be directly or indirectly caused by any negligent or wrongful errors or omissions of the Developer or its agents, servants, employees, or contractors with respect to the construction of the Minimum Improvements. The Developer shall not be responsible for, and such indemnity shall not apply to, any acts, errors, or omissions (or breach of this Agreement) of the Agency or the City or their respective agents, servants, employees, or contractors. T . carego� g rovis ons> shall sur t vethe ::;:;< a M n$t om«: r + piratiQrt this Agreement as tc� ma ters: .:sx: s n� a ore su ermiriatn car expiration During the period commencing upon the date of commencement of construction of the Minimum Improvements and ending on the date the Agency is required to issue the Minimum Improvement Certificate of ^�MY'__t_� COm liai'�ce, and in addition �e ,. to the 'insurance requirements provided for in the Easement Agreement, the Developer shall furnish or cause to be furnished to the City and Agency, duplicate originals or appropriate certificates of insurance evidencing insurance issued by insurance carriers rated at least B + VIII in Best' s Insurance Guide and naming the City as an additional insured party as follows: A. Comprehensive general liability (bodily injury and property damage) , blanket contractual liability, , errs KKR41509 10-17-94 DRAFT DDIA —1 2— eempensatien andrsonal injury liability, 1 with limits of not less than $2 , 000, 000 each and a combined single limit per occurrence basis of no less than $5 000, 000= XX- B. Endorsements containing the following three provisions shall be obtained for the policies providing the above insurance: 1. Additional named insureds: "The Palm Desert Redevelopment Agency, the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees are added as additional named insureds with respect to this subject project and contract with the Agency. " 2 . Notice: "Said policy shall not terminate nor shall it be canceled or the coverage reduced until after thirty (30) days written notice is given to the Palm Desert Redevelopment Agency. " 3 . Primary coverage: "Said policy and coverage as is afforded to the Palm Desert Redevelopment Agency and the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees shall be primary insurance and not contributing with any KKR41509 10-17-94 DRAFT DDIA -1 3- other insurance Itntained by the Palm Deseredevelopment Agency or the City of Palm Desert. " 4 . 6 Antidiscrimination During Construction. The Developer, for itself and its successors and assigns, covenants and agrees that in the construction of the Minimum Improvements, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, creed, religion, national origin, or ancestry or disability covered under . the Americans With Disabilities Act (being 42 U.S.C. § 12101 et. se . ) . 4 .7 Local , State, and Federal Laws. The Developer shall carry out the construction of the Minimum Improvements in conformity with all applicable laws, including all applicable Federal and State of California labor standards. The Agency represents that the United States is not a party to any contract at this time regarding the construction of the Minimum Improvements, and that such construction is not at this time financed, in whole or in part, by loans or grants from the United States. All costs of construction of the Minimum Improvements shall be paid by (or caused to be paid by) Developer, without participation in the costs of construction by the Agency. No public bidding procedures or requirements as to the payment of prevailing wages shall be applicable with respect to the construction of the Minimum Improvements; provided, however, that in the event that a court of competent jurisdiction determines that the construction of any or all of the Minimum Improvements were subject to public bidding or prevailing wage requirements, Developer agrees to and shall KKR41509 10-17-94 DRAFT DDIA -1 4- indemnify, defen'h and hold the City, th* Agency and their respective officers, employees, contractors, and agents harmless from and against all liability, loss, damage, backwages, fines, penalties, costs, or expenses (including reasonable attorneys fees and court costs) arising from or as a result of the determination that the construction of some or all of the Minimum Improvements were subject to public bidding or prevailing wage requirements. 4 .8 City and Other Governmental Agency Permits. Before . commencement of construction of the Minimum Improvements, the Developer shall, at its own expense, secure or cause to be secured any and all permits which may be required by the City or any other governmental agency having jurisdiction over such construction. The Agency may provide reasonable assistance to the Developer in securing such permits. 4 . 9 Rights of Access. Representatives of the Agency shall have the reasonable right of access to the Property, or any part thereof, without charges or fees, at normal construction hours during the period of construction of the Minimum Improvements for purposes of determining compliance with plans approved under this Agreement, or the provisions of the Redevelopment Plan, including, but not limited to, the inspection of the work being performed in constructing the Minimum Improvements, and the Developer shall upon receipt of written request from the Agency, make appropriate representatives available at the Property during the course of such inspections by the Agency. Such representatives of the Agency shall be those who are so identified in writing by the Executive Director of the Agency. Such Agency representatives shall have KKR41509 10-17-94 DRAFT DDIA -1 5- ' access to the Prorty only when accompanied y representatives of Developer and only if the Agency representatives have been previously identified to Developer in writing. Agency shall indemnify and hold the Developer harmless from any claims, liabili- ties, costs and expenses (including reasonable attorney's fees and costs) resulting directly or indirectly from any wilful or negligent acts of Agency or its representatives arising from such entry. • 4 . 10 Prohibition Against Transfer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights under this Agreement with respect to the Property or assume, or be deemed to have assumed, any obligations or duties hereunder with respect to the construction of the Minimum Improvements except as expressly set forth herein. Prior to the date the Agency is required to issue the Minimum Improvement Certificate of Completion, the Developer shall not assign or attempt to assign this Agreement or any right herein with respect to the Property, or delegate or transfer or attempt to delegate or transfer any obligations or duties of the Developer hereunder with respect -to the construction of the Minimum Improvements, without the prior written approval of the Agency, which approval may be given or withheld in the Agency's sole and absolute discretion. The foregoing prohibition shall not apply to the following: KKR41509 10-17-94 DRAFT DDIA -1 6- (a) Arm Mortgage or other for&* of conveyance or encumbrance for financing for the purpose of securing loans or funds to be used for financing the direct and indirect costs (including, without limitation, financing costs, interest and commissions, and the refinancing of any equity investment by Developer) of acquiring, designing, constructing, developing, leasing and operating the Minimum Improvements or the other improvements which may be constructed on the Property, or any portion thereof, pursuant to this Agreement or the Development Agreement, including any collateral assignment of this Agreement to a Mortgagee. (b) The sale or conveyance of any portion of the Property or any portion thereof (i) to the holder of any Mortgage or to any other person or entity acquiring the Property at a sale or by foreclosure or by deed in lieu thereof; and (ii) following foreclosure or acquisition by deed in lieu of foreclosure, by the Mortgagee to any third party. (c) The sale, ground leasing or transfer of any portion of the Property to any purchaser, transferee or tenant occupying at least 15, 000 square feet of gross leasable area in the Project ("Major") , provided such Major is an experienced retailer which generally acquires sites in retail centers for the purposes of erecting, constructing, maintaining and operating (or causing to be erected, constructed, maintained and operated) retail stores, and provided further that such Major's use or proposed use of the property or the improvements thereon is consistent with the Minimum KKR41509 10-17-94 DRAFT DDIA -1 7- Improvement Plaice approved by the Agent pursuant to this Agreement; (d) The conveyance or dedication of any portion of the Property to the City, Agency, or other appropriate governmental agency, or the granting of easements or permits to facilitate the development of the Property; (e) The leasing of space for occupancy in the Project; (f) The sale, ground leasing or leasing of any portion of the Property and improvements thereon for developments pads approved as such by the Agency on the Minimum Improvement Plans approved by Agency pursuant to this Agreement; The Agency's approval shall not be required for any assignment, delegation or transfer to any Developer Affiliate. For purposes of this Section 4 . 10, the term "Developer Affiliate" shall mean a partnership or joint venture in which any of The Madison Realty Partnership, Limited Partnership_ ("Madison") , John P. Boorn ("Boorn") or James S. Bennett ("Bennett") is a general partner, or any other entity which is controlled by Madison, Boorn or Bennett, singly or in any combination. Provided that all conditions of this Section 4 . 10 have been satisfied, the Agency shall take all actions reasonably necessary to accomplish the transfer, assignment, conveyance or delegation of such rights and interests and such duties and obligations as permitted pursuant to this Section 4 . 10, including, KKR41509 10-17-94 DRAFT DD[A ' but not limited ter'the execution by the Agen '''of such instruments or documents as the Developer may reasonably request to evidence the release of the Developer from any such duties or obligations; provided, however, that the Agency shall not be required to so act if it reasonably believes that to do so would materially impair its rights or obligations under this Agreement. 4 . 11 [Reserved] 4 . 12 Minimum Improvement Certificate of eg"9- en oc Within 20 days after compliance and inspection by the Agency of the Minimum Improvements (regardless of whether any other improvements upon the Property shall have been completed) , the Agency shall furnish to the Developer a certificate of Gempl .tien compliance (" Minimum Improvement Certificate of Gemp e i e C*O"mPIi$TtCe") which shall be, and shall state that it is, a conclusive determination of satisfaction of all of the Developer's obligations with respect to the Minimum Improvements in full compliance with this Agreement, the Development Agreement and the Redevelopment Plan. Developer shall have the right to cause such Certificate to be recorded in the office of the Recorder of Riverside County. If the Agency refuses or fails to furnish either a Minimum Improvement Certificate of o PA. after -'••r------ written request from the Developer, the Agency shall, within 20 business days of the written request, provide the Developer with a written statement which details the reasons the Agency refused or failed to furnish such Certificate. The statement shall also KKR41509 10-17-94 DRAFT DDIA -1 9_ contain the Agencs determination of the actin the Developer must take to obtain such Certificate. If the reason for such refusal is confined to the immediate unavailability of specific items or other "punch list" items, Agency shall issue the Certificate upon the Developer,at its option: (i) posting a bond with Agency in an amount equal to the reasonable cost of the work not yet completed, or (ii) permitting Agency to hold back from the Purchase Price an amount equal to the reasonable cost of the work not yet completed. If no written statement is delivered within said twenty (20) day period (or within twenty (20) business days after Developer shall have notified Agency that Developer has satisfied either of (i) or (ii) of the immediately preceding sentence) , Developer shall be deemed entitled to the Minimum Improvement Certificate of Gempletien o . *Netwit standing anything in this pG VllGaL i� ' en 4 . 12 .-e tti, - e€—a—Eertifieate(s) of Geeupan all the—Develeper' s ebligatians hereunder ia.h respeet test rc Minimum ��mprevements in full eemplianee with this Agreement and the Gertifieates e'€-9eeupane}=--with-respe oeme_ , the Develepe , te—issue—a—Minimum—1yapr6yemer t Gerrtif ieate---ef 4 . 13 Uses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in KKR41509 -20- 10-17-94 DRAFT DDIA interest to the Property, or any part `L ereof, that during eenstruetlen e€—the Prejeet and thereafter, tie k. . �;;>;;:.;�h ��ES��E'��::<::<:>:�. :;���ki�>r1 .. .:::: Aq a—the ans .o ::::::: :::::::: .:::::::::::: :::::::.::::::: .::::::�:::::::. expiration of the term of the Redevelopment Plan, the Developer, such successors and such assigns agree that the use of the Property (and any part thereof) shall be in compliance with the Redevelopment Plan, as amended, or such other uses as may be approved by the City and the Agency in their sole and absolute discretion. It is understood and agreed by the Developer that, except as otherwise provided in this Agreement or the Development Agreement, neither the Developer, nor its assigns or successors in interest to the Property or this Agreement, shall use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the Property or any portion thereof to any entity or party, or for any use of the Property, that is partially or wholly exempt from the payment of real property taxes pertinent to the Property, or any portion thereof, or which would cause the exemption of the payment of all or any portion of such real property taxes, during the time that the Redevelopment Plan is in effect. 4 . 14 Maintenance of the Property. Co> k1+�'T1Cic upp # h basem ent Agreement Transactionde .red seCtic� 5:.,. .., heeaf. , the Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property, that the Developer, such successors and such assigns shall, until the te-ryflina€ien of the e€€eetivity of Redeve-lepment P-lan;as it exists and as to—Time,-- EDeve-loper requests termination as of termination ,.f KKR41509 10-17-94 DRAFT DDIA -2 1- easement} maint�n in good condition the lenimum Improvements, shall keep the Property free from any accumulation of debris or waste material, subject to normal construction job site conditions, and shall maintain in a neat, orderly, healthy and good condition the landscaping required to be planted in accordance with the Minimum Improvement Plans or Development Agreement. E",gain+ nane_" deletien ei this—seetiei in its entirety and requests ciuz • Deve-ieper further requests additien--ef language thatthine-Ts�e as fire er earthquake. Nete that this issue requires reseluti the event ef a majer easualty and--Bevel-eper's ele ie- net _�,_-�g� prouisitins a£ this 5 .an 14 .shaY rebuild the parking. ::::.::::::: :.:::::::::.; :.;:.;:.;:.;:::::.;:.;:.;>::::;:.;:.;:.;;:.;:.:;.::::R.;:.:.;::;: er�ainate upa > the epiaton or ter> 1,natty o� therk3Zg gis ;as defined » ereal 4 . 15 Obligation to Refrain from Discrimination. The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segrega- tion of any person, or group of persons, on account of "sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property; nor shall the Developer, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with refer- ence to the selection, location, number, use or occupancy of KKR41509 10-17-94 DRAFT DDIA -2 2_ tenants, lessee, subtenants, sublessees for vendees of the Property. 4. 16 Form of Nondiscrimination and Nonsegregation Clauses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property, that the Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property (or any part thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or natural origin of any person. All deeds, leases or contracts pertaining thereto shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " KKR41509 10-17-94 DRAFT DDIA -2 3- (b) Pleases: "The lessee here covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry, in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number or occupancy of tenants, lessees, sublessees, tenants, or vendees in the land herein leased. " (c) In contracts: "There shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the land nor shall the contractor, or anyone claiming through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. " Agency and Developer agree that, upon sale or lease of any portion of the Property to a third party, that Developer shall be obligated to include in any sale or lease documents the provisions contained in this Section 4 . 16 but that Developer shall KKR41509 10-17-94 DRAFT DDIA -2 4_ have no obligati*ft to insure or guarantee t performance of said successor or lessee with respect to the provisions of this Section 4. 16. 4 n c�rpor on of .E seMentAgreemenh :covenants and ........ :. :.. ge ... ...and 3eve opeX... k' ter d . c adze .:. e <: e t ga a ...... d f ed .alb.....S c ► .... .. ..:.;:he a .:;:.. rx a .n ........:.:.:::::.;:::::.:.:;: :.:;.;::.;:.;:.;::; .. .. ...: . .:.:. : .:::: ........:. ::.::.;:..:.:.::.::...... :::::::.::::.:::: nc .::.:;;ab. : .: cns:;;;:.:wr :th.::::: �es .:e :.:::: o.::::: he.. . arkn. ::.....::.:.::.:....::..::.:::...:::.:.:.:::............... ......................:.......... ..:...:.. .............:.. .::.:............:::::::k::.::::.::::::.::::::::::::.:::::::::::::::....:.................. . ..::.........................::..............................:::.::.::.:::.::.,:..;:.;:.:::::.::..: : ::.::.:::.:.::.;:.;:.;:.:. -. . : tg:.::.::.>::>::>;::>::>:.>::> ::::>:.::::.;:::.:::.. .::?»:. g:::< ::>:.>;:.: tes o; eum..Improvemerts:w .c ............................................................................................................. .:::::::::::::.: . z'� . �i3: h�;...bc�d A;��:.:::::�i�c� ..................................... *iret er: a ree. ih!ati°::the . ' ov.isions o .:::::.:..;::.;.::. . :.:...::.... f..:tide;:E eu�eiC€:: eemerXt:..'$re .:::p...:::::. ��..:.::.:.: : ..::::::::::::::: : :: ::::::.::::::.::::.:::::::::::::::::::::::::::::::.:::::::.::::::::::.:: :::::::::::_ ::.::::::::. hereby 3ncorpcsrate : ;n::: their entirety by this' :ref erence;:.,�.nbo t s gredmen� and such, covenants and: ob`ll.gations shall be d33d3nC, Rnt enorceale pursuant to this Agreement and theasemenh Agreement upon deb ivery ;and recordation o the: Easement Agreement, rbect to the terms and concit�ans a€ such covenants .and obl igat ohs` as .................................................................................................... ...... ... . ... forth in the Easeent Agreement: 5. ACQUISITION OF PARKING RIGHTS. 5. 1 Parking Rights. Developer hereby agrees to sell to the Agency, and the Agency hereby agrees to purchase from Developer, the Parking Rights (as hereinafter defined ) for the "Purchase Price" (as hereinafter defined ) . The "Parking Rights" shall mean (a) the Parking Management Plan and (b) the Easement Agreement (each as hereinafter defined) . The "Parking Management Plan" shall mean a plan for the efficient operation and management of all of the parking on the KKR41509 10-17-94 DRAFT DDIA -2 5- ' Property, includ but not limited to the rking on the Public Parking Area (as defined in this Section 5. 1) . The Parking Management Plan shall be prepared under Agency's and Developer's supervision by a parking consultant retained by Developer at Developer's sole cost, liability and expense, after obtaining Agency's approval of the parking consultant. The Parking Management Plan and any amendments thereto shall be subject to Agency's "'.''approval. If Agency fails to respond to any request by Developer for- approval of a parking consultant, the • Parking Management Plan, or any amendment thereto, within -28 business days after Developer's request therefor, such approval shall be deemed to have been given. The Parking Management Plan shall include, among other things, Developer's rights (and any limitations thereon) with respect to the operation of the parking upon the Property,- including, without limiting the generality of the foregoing, rights with respect to valet parking, parking validations and employee parking. Although the Parking Management Plan shall be approved in advance of the Closing (as hereinafter defined) , it shall not be effective unless and until the Closing occurs and, without limiting the generality of the foregoing, shall not be effective unless and until Agency pays to Developer the Purchase Price. ETO be a'_-____e ' The "Easement Agreement" shall mean an agreement and grant deed, substantially in the form of Exhibit E attached hereto, granting to the Agency a non-exclusive easement (the "Easement") for public parking purposes over all parking areas located on the Property, and setting forth certain obligations of Developer and KKR41509 10-17-94 DRAFT DDIA -2 6- ' certain rights o ,gency with respect to a1l'416f the parking areas on the Property. The closing of the Easement Agreement transaction ("Closing") shall be by means of the escrow as hereinafter described; provided, however, that the Agency's obligation to consummate the Easement Agreement transaction ("Easement Agreement Transaction") shall be subject to and contingent upon successful and timely compliance of the Minimum Improvements, as more • particularly described herein. Agency and Developer acknowledge and agree that satisfaction of the conditions precedent set forth in Section 5.7 hereof including, without limitation, the construction and compliance of the Minimum Improvements, is material consideration for the Agency's agreement to pay the Purchase Price (as hereinafter defined) . 5. 2 The Purchase Price. The Purchase Price for the Parking Rights shall be the sum of Five Million Dollars ($5, 000, 000. 00) (the "Purchase Price") . The Purchase Price shall be deposited into escrow at least 3 days prior to the Closing. Upe isse a e€ the first grading permit ,apl ble the e---struetien of the Minimum mpre'veme'nts,, and net bTere,C The Agency's obligation to pay the Purchase Price, subject to the conditions and limitations contained in this Agreement, shall constitute an indebtedness of the Agency within the meaning of the Redevelopment Legislation (Health and Safety Code Section 33000, et seq. ) and the Redevelopment Plan. Promptly following the issuance of the first grading permit as described above, the Agency shall KKR41509 10-17-94 DRAFT DDIA -2 7- ' take all actions*omtecessary to reflect such idebtedness and its Purchase Price obligations hereunder. Such obligations shall continue to remain in full force and effect unless and until this Agreement is terminated or Agency's obligation to acquire the Parking Rights and pay the Purchase Price has been terminated pursuant to the terms of this Agreement. Such Purchase Price obligations shall be subordinate to all set aside obligations under. Health and Safety Code Section 33334.2 , tax sharing agreements, bonds, notes, certificates of participation, loan agreements with the Palm Desert Financing Authority, and similar indebtedness of the Agency with respect to which the Agency has pledged or will pledge tax increment and which is incurred by the Agency prior to or after the Effective Date; provided, however, the Agency will not incur such future indebtedness if the effect would be to impair its ability to satisfy its Purchase Price obligations pursuant to this Agreement. Peve-leper requests _ representation an =_=anti that eurent indebtedness does net impair the Ageney' s ability `o m==`- its-urehase Pri$e-obligations. Developer weuld prefer that subordination language be deleted. Based on pri - ments, it- .-obable that Bill Strauss will insist that suber-dInati _..__............................_................................................................ language be maintained.-j- The Agency warrants endrepsens to the hest o 3ts lnowledge,, the �nclebtedness <tf '>t2iecercr eXist. ng as t� the Ef eet ve Bate does: nab m a:3r .... nc r ` abiVi1` r.. to pair tie Purchase Price, ?iE and as s1xcx`chse price stay beccs to d> a and s�..... . The Agency ag>~ees, upon written request of the 3eue.4...� .. .... ... .. t in nc euen more thin ttiice der ca .edarxea ,:'.: s ; pout : sah� na� 2 :.:. r�acstio» ; as gev�eope .. may... eaeoneh .y. eges .:.:te KKR41509 10-17-94 DRAFT DDIA -2 8- ............................................_.......................... ::.:::::. ::::::: :..:.:::::::.::................ .:::::::::::::: ::1'................... :.........................::............:....:.::::::::::::.:::::::::::::::::::.::::::: 5. 3 Damages and Remedies for Developer's Default. IN THE EVENT THAT DEVELOPER, FOR ANY REASON WHATSOEVER OTHER THAN A DEFAULT BY AGENCY, FAILS TO CONSUMMATE THE EASEMENT AGREEMENT TRANSACTION PURSUANT TO THE TERMS OF THIS AGREEMENT, THEN THE AGENCY MAY, AT ITS SOLE AND ABSOLUTE DISCRETION, CANCEL AND TERMINATE THIS AGREEMENT IN ITS ENTIRETY AND ANY INTEREST CREATED BY IT AND RECEIVE A REFUND OF THE PURCHASE PRICE WHICH HAS BEEN PLACED INTO ESCROW, AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT. THE PARTIES RECOGNIZE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO AGENCY CAUSED BY THE BREACH BY DEVELOPER OF ITS OBLIGATION TO CONSUMMATE THE EASEMENT AGREEMENT TRANSACTION OR THE AMOUNT OF COMPENSATION AGENCY SHOULD RECEIVE AS A RESULT OF BUYER'S BREACH OR DEFAULT OF ITS OBLIGATION TO CONSUM- MATE THE EASEMENT AGREEMENT TRANSACTION. SUCH RECOVERY OF THE PURCHASE PRICE AND RIGHT TO TERMINATE THIS AGREEMENT SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF AGENCY BY REASON OF ANY BREACH OR DEFAULT BY DEVELOPER UNDER OR IN CONNECTION WITH SUCH OBLIGATION TO CONSUMMATE THE EASEMENT AGREEMENT TRANSACTION, AND SHALL BE IN LIEU OF ANY OTHER MONETARY RELIEF OR, WITHOUT LIMITATION, ANY OTHER RELIEF TO WHICH AGENCY MAY OTHERWISE BE ENTITLED IN THE EVENT OF SUCH BREACH OR DEFAULT. Developer Agency KKR41509 10-17-94 DRAFT DD[A -2 9- 5.4 E�Wtow. The escrow instructi ns set forth in these Sections 5.4 through 5. 10 shall apply to the Closing of the Easement Agreement Transaction. Any reference to "Developer" in these escrow instructions shall mean the party signing this Agreement as Developer and any successors and assigns who assume the obligations or benefits of Developer, as permitted. by this Agreement. (a) The Agency and Developer agree to establish the . escrow for the Easement Agreement Transaction with Chicago Title Insurance Company, 3880 Lemon Street, Riverside, CA 92501 or such other escrow agent mutually agreed upon by the parties hereto (the "Escrow Agent") , within ten (10) days following the Effective Date. Agency's obligation to close escrow shall be conditioned upon the issuance by Chicago Title Insurance Company ("Title Company") of a ALTA form title insurance policy insuring that upon the close of escrow, pursuant to (and subject to the terms and conditions of) the Easement Agreement, the Agency has non-exclusive easement rights for public parking as described in Section 5. 1 hereof, subject only to those exceptions expressly permitted in this Agreement or otherwise approved by the Agency. In the event that the Title Company sets forth requirements for the issuance of a ALTA title insurance policy applicable to the Easement other than those requirements specifically set forth in this Agreement, and such requirements are unacceptable to the Agency, solely in its discretion, then the parties may select another title insurance company by mutual agreement and all times for performance of actions thereafter, shall be automatically extended for thirty (30) calendar days. Sections 5. 4 through 5. 10 of this Agreement KKR41509 10-17-94 DRAFT DDIA -3 0- ' constitute the mint escrow instructions*406f the Agency and Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. (b) The Agency and Developer shall provide and execute such additional escrow instructions consistent with this Agreement as shall be necessary. The Escrow Agent is hereby empowered to act under this Agreement, and upon indicating its acceptance of its obligations under Sections 5.4 through 5. 10 of this Agreement in writing, delivered to the Agency and Developer within 5 days after the establishment of the escrow, shall carry out its duties as Escrow Agent hereunder. (c) Upon delivery by Developer and Agency to the Escrow Agent of the Easement Agreement pursuant to Section 5. 8 of this Agreement, substantially in the form attached hereto as Exhibit E, the Escrow Agent shall record such Easement Agreement in accordance with these escrow instructions, provided that title to the Easement can be vested in the Agency in accordance with the terms and provisions of this Agreement, and provided that Escrow Agent is prepared to comply with its obligations under Section 5. 10 hereto to deliver the Purchase Price to Developer. The Escrow Agent shall pay out of the amounts deposited into escrow any documentary transfer taxes required by law. (d) The Agency and Developer shall deliver to the Escrow Agent all documents necessary for the conveyance of the Easement to the Agency in conformity with, within the times, and in the matter provided in this Agreement. KKR41509 10-17-94 DRAFT DDIA -3 1- • j (e) T�WAgency shall pay into esc a to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs (but in no event earlier than five days prior to the Closing) : 1. One-half of the escrow fee. (f) Developer shall pay into escrow to the Escrow Agent the following fees, charges, and costs promptly after the Escrow Agent has notified Developer of the amount of such fees, charges and costs (but in no event earlier than five days prior to the Closing) : 1. One-half of the escrow fee; 2 . The cost of recording the Easement Agreement; 3 . The cost of the ALTA title insurance policy required hereby (provided, however, that Agency shall be responsible for the cost of any endorsements) ; 4 . Any documentary transfer taxes required by law; and 5. Notary fees. KKR41509 10-17-94 DRAFT DDIA -3 2- (g) D Weloper and Agency shall imely and properly execute, acknowledge and deposit into escrow the Easement Agreement in accordance with the requirements of this Section 5.4 and in the form required by Section 5. 6 of this Agreement. (h) The Escrow Agent is authorized to: 1. Pay and charge the Agency and Developer for any fees, charges and costs payable under this Section 5. 4 . Before the close of escrow, the Escrow Agent shall notify the Agency and Developer of the estimated costs of any and all the fees, charges and costs necessary to clear title and close the escrow; 2 . Disburse funds and deliver the Easement Agreement and other documents to the parties entitled thereto on the conditions of this escrow having to be fulfilled by the Agency and Developer. Such funds shall not be disbursed and delivered by the Escrow Agent to Developer unless and until the Escrow Agent has recorded all documents required to be recorded as conditions for the close of escrow, as set forth in Section 5. 7 hereof, including but not limited to the Easement Agreement; 3 . Record the instruments delivered through the escrow if necessary or proper pursuant to the terms of this Agreement and otherwise to convey the Easement to the Agency in accordance with the terms and provisions of these escrow instructions. The parties acknowledge and agree that development of the Minimum Improvements may be completed prior to the compliance of any other improvements upon the Property which KKR41509 10-17-94 DRAFT DDIA -3 3- Developer may ect to construct. The 1ncy shall have no obligation to acquire the Easement, and the Escrow Agent shall not tender any portion of the Purchase Price to Developer, until such time as all conditions to the close of escrow as set forth in Section 5.7 hereof are satisfied or waived in writing by the Agency. (i) (Reserved] (j) If this escrow is not in a condition to close on or before the Outside Closing Date set forth in this Section 5.4 (j) , subject to any and all extensions authorized by this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance may, in writing, demand the return of its money, papers or documents from the Escrow Agent and/or the termination of this Agreement, as applicable. No demand for return of such money, papers or documents shall be recognized until days after the Escrow Agent shall have sent copies of such demand to the other party in accordance with the requirements of Section 7 . 1 hereof. Objections, if any, shall be raised by written .notice submitted to the Escrow Agent and to the other party within said 10 day period, in which event the Escrow Agent is authorized to hold all money, papers and documents until further instructed by mutual agreement of the parties or, upon failure of the parties to agree, then by order or decree of a court of competent juris- diction. If no demands or objections are made, the escrow shall be closed as soon as possible. The "Outside Closing Date" shall mean five (5) years from the Effective Date, subject to any extensions permitted by Section 4 . 3 hereof. KKR41509 10-17-94 DRAFT DDIA -3 4- (k) A amendment to these escrow*istructions shall be in writing and signed by both the Agency and Developer. At the time of execution of any amendment to these escrow instructions, the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. (1) All communications from the Escrow Agent to the Agency or Developer shall be directed to the respective parties at the addresses set forth in Section 7 . 1 of this Agreement for notices, demands and communications between the Agency and Developer. (m) The liability of the Escrow Agent under this Agree- ment is limited to performance of its obligations imposed upon it under Sections 5. 4 through 5. 10, inclusive, of this Agreement. 5. 5 Conveyance of Easement Title. Subject to (a) satisfaction or waiver of the conditions set forth in Section 5.7, hereof; and (b) any mutually agreed upon written extension of time or extensions otherwise authorized by this Agreement, conveyance to the Agency of title to the Easement in accordance with the provisions of this Section and Section 5.4 of this Agreement shall be completed on or prior to the outside Closing Date. The Agency shall accept title to the Easement on the date established therefor in this Section 5. 5, provided that all conditions precedent to the Agency's obligation to accept title to KKR41509 10-17-94 DRAFT DDIA -3 5- the Easement ham been fulfilled or waive'al`'` in writing by the Agency. Escrow shall be deemed to be in a condition to close at such time as Developer can deliver and convey to the Agency title to the Easement, subject to satisfaction or written waiver of the conditions set forth in Section 5.7, and otherwise in accordance with the provisions of this Agreement. 5. 6 Form of Easement. Developer shall convey to the Agency title to the Easement by the Easement Agreement substan- tially in the form attached hereto as Exhibit E. 5.7 Conditions for Close of Escrow. (a) The Agency' s obligation to close escrow and pay the Purchase Price shall be expressly conditioned upon the prior satisfaction or written waiver by the Agency of the following conditions: 1. The deposit by Developer into escrow of the executed and notarized Easement Agreement, substantially in the form and substance of Exhibit E, with an approved Parking Management Plan attached thereto. 2 . The deposit into escrow by Developer of all sums required to be deposited by it into the escrow pursuant to this Agreement. KKR41509 10-17-94 DRAFT DDIA -3 6- 3'%w A Minimum Improve%d6it Certificate of Gempletlen shall have been issued by Agency or Developer shall have become entitled to same) pursuant to Section 4. 12 of this Agreement. 4. The acceptance by the Agency of the conditions or exceptions set forth in the ALTA title insurance policy to be provided pursuant to Section 5.4 (a) of this Agreement. After receipt of a preliminary title report ("PTR") for such title insurance policy, the Agency shall have thirty (30) days to review, accept, or reject any exceptions or conditions contained in the PTR which would be applicable to the Agency's acquisition of title to the Easement. In the event the Agency fails timely to reject, in writing, such exceptions and conditions, which rejection may be made in the Agency' s sole discretion, the Agency shall be deemed to have accepted the PTR and the exceptions and conditions contained therein. 5. The deposit into escrow for recordation (or the prior recordation) of a subordination agreement executed by the holder of any Mortgage upon the Property, subordinating the lien of the Mortgage to the Easement. 6. The Developer having provided the Certificates of Insurance described in the Easement Agreement. 7 . The Developer having commenced construction of the Minimum Improvements within alri following the Effective Date of this Agreement. For purposes of the foregoing, KKR41509 10-17-94 DRAFT DDIA -3 7_ commencement of instruction shall be deemeto have occurred if ........................... prior to the expiration of the '1►c3' period set forth above, Developer has obtained the first grading permit (or more inclusive permit including the right to grade) applicable to the Property and has thereafter commenced grading of the Property in preparation for the construction of the Minimum Improvements. 8. The Developer having completed construction of .................................. the Minimum Improvements no later than ems. !! O::s""M""CJ T'� following the Effective Date of this Agreement. For purposes of the fore- going, construction will be deemed to have been completed when Developer has received, or has become entitled to receive, a Minimum Improvement Certificate of G..mple__ ce pursuant to Section 4 . 12 of this Agreement. The --year 42 month deadline for the commencement of construction and the year 60 month deadline for the compliance of the construction of the Minimum Improvements may be extended as provided in Section 7 . 4 of this Agreement, previded, hewever, that- in ne event sball the time allewed-€ems-eemplanea e€-the Minimum imprevements be extended te a date whieh is mere than years fellewing the Effeetive Date ef this Agreement. (b) Developer's obligation to convey the Easement to the Agency and the close of escrow shall be expressly conditioned upon satisfaction or waiver by Developer of each of the following: 1. The Agency shall have deposited into escrow the Purchase Price (which Purchase Price shall also be in escrow KKR41509 10-17-94 DRAFT DDIA —3 8_ immediately prices to the close of escrowand all other sums required to be deposited by it into the escrow pursuant to this Agreement. 2. The deposit by Agency into escrow of the executed and notarized Easement Agreement, substantially in the form and substance of Exhibit E, with an approved Parking Management Plan attached thereto. Notwithstanding any provision herein to the contrary, in the event that any condition precedent to the Agency's obligation to close escrow, as set forth in this Section 5.7, is not satisfied or otherwise waived by the Agency, then the Agency, in its discre- tion, and subject to the satisfaction of all conditions precedent to Developer's obligation to convey the Easement as set forth in this Section 5.7, may submit written notice to Developer and the Escrow Agent that the Agency waives or otherwise deems satisfied conditions for the close of escrow, and thereupon escrow shall expeditiously and with due diligence proceed to close. 5.8 Time and Place for Delivery of Documents to Escrow. Subject to any mutually agreed upon written extensions of time or any extensions otherwise authorized by this Agreement, the parties shall deposit with the Escrow Agent promptly at such time as such documents have been fully prepared and executed, but in no event later than 5 days before the date scheduled for Closing, any and all documents which are required in order for escrow to close in accordance with Section 5. 5 hereof. KKR41509 10-17-94 DRAFT DDIA -3 9- 5.9 Ts and Assessments. A valorem taxes and assessments, if any, on the Public Parking Area and taxes upon this Agreement or any rights hereunder levied, assessed or imposed shall be paid by Developer, both before and after conveyance of the Parking Rights to the Agency. 5. 10 Delivery of Documents. Immediately after close of. Escrow, Escrow Agent shall deliver the Purchase Price to Developer by its check to Developer sent by overnight delivery service (or, . if Developer shall have provided wire transfer instructions, by wire transfer of immediately available federal funds) and shall deliver a recordation conformed copy of the Easement Agreement to each of Agency and Developer. 6. DURATION OF COVENANTS • DEFAULTS REMEDIES AND TERMINATION. 6. 1 Effect and Duration of Covenants and Agreements. Except as otherwise specifically set forth herein, the covenants established in this Agreement shall, without regard to technical classification, be binding upon and benefit the Developer and the Agency and their respective successors in interest and assigns. Unless otherwise provided to herein, the covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the Developer and any successor in interest to the Property, for the benefit and in favor of the Agency, its successors and assigns, and the City. The KKR41509 10-17-94 DRAFT DDIA -4 0- • covenants set fc ,h in Sections 4 . 13, 4 . 14 end 7 .5 hereof shall remain in effect until the earlier (i) the termination of this Agreement by either party pursuant to Sections 5. 3 , 6. 6, 6.8 or 12. 1 hereof or (ii) for those certain periods specified in Section 4. 13, 4 . 14 and 7.5 hereof.The covenants set forth in Sections 4 . 15 and 4. 16 hereof shall remain in effect in perpetuity unless this Agreement is terminated by Agency or Developer by reason of the other party's failure to, as applicable, either commence or complete construction of the Minimum Improvements or to pay the Purchase Price as appileable in accordance with this Agreement. In the event of termination for the foregoing reasons, the covenants contained in Sections 4 . 15 and 4 . 16 shall not remain in perpetuity and shall expire with the termination of this Agreement. Except as specifically set forth above or as otherwise expressly provided in this Agreement, all covenants, agreements and conditions contained in this Agreement shall expire upon the termination of this Agreement. 6. 2 Defaults. Subject to extensions of time as permitted in this Agreement, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who fails or delays shall within the time periods set forth herein commence to cure and cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy in accordance with the provisions of Section 6.7 hereof. The injured party shall give written notice of default to the party in default, specifying the default complained of by the KKR41509 10-17-94 DRAFT DDIA -4 1- injured party. A,,,ilure or delay in giving Bch notice shall not constitute a waiver of any default. The Agency shall send copies of any such default notices to such persons and entities as Developer may designate pursuant to this Agreement. Except as otherwise expressly provided in this Agreement, any failures or delays by either party in asserting any of its rights and remedies shall not . deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. In the event the Developer transfers a portion of its obligations here- under as expressly provided for in Section 4 . 10 hereof, a default by either the Developer (as to the obligations not so transferred) or the transferee (as to the obligations so transferred) under this Agreement shall not constitute a default by the other for any pur- pose whatsoever, and Agency shall look solely to the defaulting party for the enforcement of its obligations under this Agreement. 6. 3 Institution of Legal Actions. After expiration of the applicable time periods set forth herein, in addition to any other rights or remedies, either party may (except as set forth in Sections 5. 3 , 6. 6, 6.8 and 12 . 1 hereof) institute legal or equitable (including specific performance) action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the provisions of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, in any other appropriate court of the County, or in the Federal District Court in the Central District of California. In the event that either party is liable for damages to the other, such liability shall not KKR41509 10-17-94 DRAFT DDIA -4 2- exceed costs incurred by such other party in the performance of this Agreement and shall not extend to compensation for loss of future income, profits or assets;—previded,hewe=v_Y, that the felle i- - , ,graph and net this sentenee shall he pp leab - with rr- respeed-teee liability e€-Agency fer breaeh-ef the-eb i gati nns deseribed-i-n the . Notwithstanding anything in this Agreement to the contrary, Developer agrees that any liability including, without limitation, interest and attorneys fees, of Agency for any breach of Agency's obligation to pay the Purchase Price shall not in any event exceed the sum of $5, 000, 000> 6. 4 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 6. 5 Acceptance of Service of Process. In the event that any legal or equitable action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or Chairman of the Agency, or in such other manner as may be provided by law. In the event that any legal or equitable action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon an officer of a general partner of the Developer, or in such manner as may be provided by law, and shall be valid whether made within or without the State of California. KKR41509 10-17-94 DRAFT DDIA -4 3- 6. 6 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement including, but not limited to Sections 5.3, 6. 6, 6.8, and 12 . 1 hereof, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Notwithstanding anything in this Agreement to the contrary, in the event that the Developer fails to commence or complete construction as provided in Section 5.7 (6) and (7) hereof within the time set forth therein, subject to the extensions of times as provided therein, the Agency's sole and exclusive remedy with respect to Developer's failure to commence or complete said Minimum Improvements shall be the right, in the Agency' s sole and absolute discretion, to terminate this Agreement in its entirety, including, without limitation, the Agency' s obligation to purchase the Parking Rights. . 6.7 Default. Subject to the specific exceptions and conditions set forth in the particular sections of this Agreement, if either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If a monetary default is not cured within 20 days after service of the notice of default, or if a non-monetary default is not commenced to be cured within 30 days after service of the notice of default or such non- monetary default is not cured promptly in a continuous and KKR41509 10-17-94 DRAFT DDIA -4 4- diligent manner within a reasonable period of time after commencement, the non-defaulting party may (subject to Sections 5.3 , 6. 6, 6.8 and 12 . 1 hereof) thereafter (but not before) commence an action for damages against the defaulting party with respect to such default or commence an action for specific performance of the terms of this Agreement pertaining to such default. During any applicable period for cure provided in this Agreement, such party shall not be deemed in default hereunder. 6.8 Failure of Easement Purchase Transaction to Close. In the event that the Easement Purchase Transaction does not close due to the failure of tate—Deeper to eepmenee and = mp ete eenstruetien e€-the e `">'cy <>< he< o` 't :'>d set forth in Section 5.7' :.* hereof, and if Agency does not exercise its right to terminate this Agreement in the event of such failure, then the Developer may, in its discretion, elect to terminate this Agreement. In the event that Agency is otherwise obligated to pay the Purchase Price pursuant to the terms of this Agreement and the Agency fails to do so, then Developer sha4-1-maa thaxeafte ake an irreveeable e ee to either terminate this Agreement in its entirety as its ee—and—exelusive-remed}�--or te have this .................................. Agreement continue in full force and effect and pursue ; e3 # c► I; cgic per> omancel a��e-s e .v ele er • a -pe , this Agreement at law er In equity, subject to the limitations set forth in Section 6. 3 hereof. Deye-lep-r shall ga4P written '--- e€ its feregeing eleetien to Ageeey within 1-5 days-€e lewing�he date that the Agency was e erwise ebligated to pay the P rehase Price-pursuant te the-tents ef this-Agreement. i€-Develeper fails to previd=--ritten net-iee of whi-eh re-melt has =-eet_a .._ pursue, KKR41509 10-17-94 DRAFT DDIA -4 5- t the.. Develeper wi-3-3eeneltisiv_y b±e-leened t-e—have—eleeted--fie tci-minate this Agreement as its set a and emelas_- - - --meA��y 6.9 Excuse of Aeeney's ObIleat-ren—te Perfor-O". e. Notwithstanding anything in this Agreement to the contrary, the Aged hall shall have ire--obligations or liability pursuant to this Agreement for the -"-1,,,..,.n,... t 's failure to "7 perform any p ` > ;'`' t ether actlens required of ..................................... pursuant to this Agreement if S c s Ageney--is precluded from performing = scat -ems by the final decision of a court of competent jurisdiction or by prohibitive legislation. ............................. .........._................ ................................_.............................................. ..................... 6 0 I E€€e- i f Term�.ha don oh Dev�lopme�t Agreeme»t ` .:................................. .. termrtatesn € the Agrement shl� �em.mate: :te''.;�erec,pme> .............................................................................................................................................................................................................................. ......................... . g�reemen tin ess a pause or termina on >€s ::;:;. 5 'Ac, ^eemME 0 e euxise cause €or temariation o -;the Dev+ cple >:.Areemet >`>'>as ................................................................ provided therein. 7. GENERAL PROVISIONS. 7 . 1 Notices Demands and Communications Between the Parties. Formal notices, demands, and communications between the Agency and the Developer shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, or by overnight courier or delivery service to the principal offices of the Agency and the Developer, as designated in this Section 7 . 1. Notices shall be deemed given upon receipt if the method of delivery is personal service or on the 3rd business day following deposit with the United States Postal Service. Such KKR41509 10-17-94 DRAFT DDIA -4 6- written notices, demands and communications may be sent in the same manner to such addresses as either party may from time to time designate by notice as provided in this Section 7. 1. Notices shall be sent as follows: AGENCY: THE PALM DESERT REDEVELOPMENT AGENCY 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: Carlos L. Ortega Executive Director DEVELOPER: - The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. John P. Boorn with a copy to: The Madison Realty Partnership, Limited Partnership 7 West 7th Street Cincinnati, Ohio 45202 Attention: Mr. James S. Bennett with a copy to: Pircher, Nichols & Meeks 1999 Avenue of the Stars, Suite 2600 Los Angeles, California 90067-6077 Attention: PN&M Notices (SAH) 7 .2 Conflicts of. Interest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or associa- tion in which he is, directly or indirectly, interested. KKR41509 -4 7- 10-17-94 DRAFT DDIA Each pay warrants to the other th1t it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement other than normal costs of conducting business and costs for professional services such as attorneys, architects and engineers and other than the transaction between Developer and ACD2 described in the Recitals to this Agreement. 7.3 Nonliability of Agency officials and Employees. No member, official, employee or consultant of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or its successor, or on any obligations under the terms of this Agreement (except by reason of willful, wanton misconduct or malfeasance in office) . 7 . 4 Enforced Delay; Extensions of Time of Performance. In addition to specific provisions of this Agreement and if not prohibited by specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-outs, labor disputes, riots, floods, earthquakes, water shortages, fires, casualties, Acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions, litigation or court orders in connection therewith, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any KKR41509 -4 8- 10-17-94 DRAFT DDIA contractor, subs itractor or supplier, acts'*r failure to act of the other party, acts or failure to act of the City or any other public or governmental agency or entity or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. At the request of Developer, the Term of this Agreement shall also be extended for the period • of the enforced delay. Notice by the party claiming such extension shall be sent to the other party within thirty (30) days of knowledge of the commencement of the cause. Times of performance under this Agreement may also be extended by mutual agreement in writing between the Agency and the Developer. Except as expressly otherwise provided in this Agreement, the inability of Developer to obtain or maintain financing necessary for the development of the Property shall not be deemed an excuse for delay in performance or entitle Developer to an extension of time to perform or give rise to a right to extend the Term of this Agreement. 7. 5 Replacement of Existing Businesses. It is the intent of the Developer and the Agency that the Developer attract new businesses to locate within the Project. For that reason, the parties agree that should the Developer or any successor-in-interest to the Developer sell or lease any portion of the Project to any Qualified Existing Business (as hereinafter defined) for the operation in the Project of substantially the same business as that being operated in its KKR41509 _4 9_ 10-17-94 DRAFT DDIA existing locati , and if, at any time prior to or within twelve (12) [Developer requests six (6) ] months following the opening for business of the Qualified Existing Business at the Project, the Qualified Existing Business ceases operations at its existing location solely by reason of the Qualified Existing Business' relocation to the Project, then the Developer shall locate a Satisfactory Replacement Business (as hereinafter defined) which shall be willing to enter into a contractual commitment to the effect that the Satisfactory . Replacement Business shall open for business within six (6) months following the closure of the Qualified Existing Busi- ness at its existing location and otherwise upon economic terms and conditions not materially worse than those contained in the lease or other occupancy agreement to which the Quali- fied Existing Business was a party. All proposed relocations of Qualified Existing Businesses shall be submitted to the Agency for determination as to the applicability of this Section and for approval. For purposes of this Section 7 . 5, the following definitions shall apply: "Qualified Existing Business" means any existing business located within the City occupying 5, 000 square feet or more of gross leasable area if such business is not located on E1 Paseo. If such business is located on E1 Paseo, then it shall be a "Qualified KKR41509 -5 0- 10-17-94 DRAFT DDIA ExistAIII Business" if it OCCUPAK 1, 000 square feet or more of gross leasable area. A business shall not be considered to be "existing" after it has ceased operation within the City for a period of twelve (12) months [Developer requests six (6) ] . "Satisfactory Replacement Business" means any business which is permitted by the • City's zoning ordinances at the location to be occupied and which is of a similar quality and character and fulfills the same function within the area's retail mix as the Qualified Existing Business, as determined and approved by the Agency in its sole and absolute discretion. The requirements of this Section 7 . 5 do not apply to any Qualified Existing Business which (a) leases its property pursuant to a. lease which expires at any time prior to, or within six (6) months after, the date that the Qualified Existing Business opens for business at the Project [and which was offered terms for renewal which were inconsistent with prevailing market conditions as determined by the Agency;] or, (b) shall have sought to expand its premises but shall have been unable to do so as a result of unreasonable [or undesirable] requirements or restrictions placed on the Qualified Existing Business by the landlord, the lack of space [, an unacceptable layout, ] or other physical or economic KKR41509 _51_ 10-17-94 DRAFT DDIA constraints inhnt in the existing buildirvor location or, (c) is located within a retail shopping center in the city containing 500, 000 square feet or more of gross leasable area. This Section 7 .5 touches and concerns the Property and is intended by the Developer and the Agency to be a covenant running with the Property, enforceable by the Agency (but not by any third party, including but not limited to the landlord of any Qualified Existing Business) against the • Developer or any successor thereto as to the Property. This covenant shall only be for the benefit of the Agency and shall not benefit any third party, including but not limited to the landlord of any Qualified Existing Business. This covenant shall remain in effect for a five (5) [Developer requests one (1) ] year period after 3----..-z—e# a Minimum Gemplianee. EDeveleper requests insertion of Agency acknowledges the Developer does not agree to this term, but is doing so at the Ageney' s insistenee. ] o e r .. square Beet cs grass leaseie area...a te;.::Prrxct..: 8 . ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all such matters. KKR41509 10-17-94 DRAFT DDIA -5 2_ All wa "ers of the provisions of is Agreement must be in writing and signed by the appropriate officers (or other appropriate representatives) of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate officers (or other appropriate representatives) of the Agency and the Developer. This Agreement and any provi- sions hereof may be amended by mutual written agreement by Developer and the Agency and such amendment shall not require the consent of any other fee owner, tenant, lessee, easement holder, licensee, Mortgagee, trustee, or any other person or entity, including but not limited to any party to this Agreement other than the Agency. 9. MISCELLANEOUS. (a) Time is of the essence of this Agreement. If the last day of any time period stated herein falls on any Saturday, Sunday or legal holiday of the State of California, the period shall be extended to include the next day which is not a Saturday, Sunday or such holiday. (b) If any portion of this Agreement is held to be illegal, void or unenforceable, all other provisions hereof shall remain in full force and effect to the extent the resulting Agreement preserves the material economic terms of this Agreement. (c) Except as otherwise expressly provided by this Agreement, approvals and consents required of either party KKR41509 -5 3- 10-17-94 DRAFT DDIA hereunder shallot be unreasonably withheleand any approval or disapproval shall be given within the times set forth in this Agreement, or if no time is given, within thirty (30) days of request therefor. Unless otherwise expressly provided for in this Agreement, the failure either party to approve or disapprove within such time limits shall be deemed an approval. (d) Nothing in this Agreement shall be deemed or construed to create the relationship of principal and agent, or of partnership, association or joint venture between the parties to this Agreement. (e) Both parties agree to act reasonably and to reasonably cooperate in performing their obligations pursuant to this Agreement. Except as otherwise expressly provided by this Agreement, when exercising their discretion as to approvals and other acts hereunder, each party agrees to act reasonably in so exercising their respective discretion. Each party hereto covenants to take such other acts and execute such additional documents which are reasonably necessary to effectuate the intent and provisions of this Agreement and the Development Agreement. 10. ESTOPPEL CERTIFICATES. Either the Agency or the Developer may, at any time, and from time to time, deliver written notice to the other requesting that it certify in writing that, to the knowledge KKR41509 10-17-94 DRAFT DDIA -5 4- of the certifyfi%q party, (i) this Agreemenis in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the requesting party is not in default in the perform- ance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. Agency acknowledges that a certificate hereunder may be relied upon by transferees, assignees and lessees of Developer and a Mortgagee. 11. AGREEMENT TO COOPERATE. The Agency and the Developer acknowledge that Mortgagees, and other purchasers, transferees and lessees of the Developer's interest therein (and which are not yet iden- tified) may require that they have the right to review this Agreement. The Agency agrees that it will reasonably cooper- ate with such Mortgagees, purchasers, transferees and lessees by providing such letters of understanding, implementing memorandum or other instruments with respect to this Agreement as they may reasonably request in the process of such review; provided, however, the Agency shall not be required to provide such letters of understanding, implementing memorandum or other instruments if it reasonably believes that the effect would be to materially adversely affect its rights or interests hereunder. KKR41509 10-17-94 DRAFT DDIA -5 5- 12. MORTGAGEE PTECTION 12 . Mortgagee Protection; Certain Rights of Cure. Nothing contained herein shall limit or interfere with the lien of the heldere oi >` it t `pr an mortgaged -(-a Y .:.. "helder of any Hertgag-ll inehid e- the ti,..i a..r of w i,,,...y e fle a interest u,.rtgage, er the—pre??ws:r at a judicial er pursuant in—the-TSPL- ,�any persen er entity ..__-___ a_1u____ _-_-- • to the Preperty er any part-thereefpursuant te-a--deed in l i eu of fereelesure),and,- no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage. 12 . 1 Security Financing; Mortgagee Not Obligated to Construct. (a) No Mortgagee with respect to the Property shall in any way be obligated by the provisions of this Agreement to construct or complete the Minimum Improvements, or to guarantee such construction or compliance unless such Mortgagee shall have expressly assumed such obligations; provided, however, that if the Mortgagee elects not to construct or cause the construction of the Minimum Improvements, then the Agency may, in its sole and absolute discretion, and in lieu of any other rights or remedies available to the Agency under this Agreement, at law, or in equity, terminate this Agreement including, without limitation, the Agency's obligation to purchase the Parking Rights. KKR41509 10-17-94 DRAFT DDIA -5 6- (b) M "'tgagee Protection. The pal4leies hereto agree that this Agreement, including, but not limited to the provisions of Section 4. 10 (Prohibition Against Transfer) , shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any Mortgage, other security device securing financing with respect to the Property nor shall it impair or restrict in any manner the exercise of any remedies thereunder, including but not limited to, foreclosure or the taking of a deed in lieu of foreclosure. Agency acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with Developer and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. Agency will meet in good faith to discuss and consider such request for interpretation or modification, but shall not be obligated to take any other action with respect thereto. Any Mortgagee of the Property shall be entitled to the following rights and privileges: (i) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value. (ii) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the KKR41509 10-17-94 DRAFT DDIA -5 7- mortgage or deter of trust, or deed in 1 of such fore- . closure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance. However, to the extent that the performance of such covenant by Developer is a condition precedent to the performance of any act by the Agency, the Agency shall have no obligation to perform such act hereunder unless and until the Mortgagee performs the covenant of Developer which is the condition precedent to the Agency's performance. Although a Mortgagee is not obligated to perform the obligations and covenants of Developer hereunder, if the Mortgagee elects to so perform, such performance shall be in full accordance with the terms of this Agreement. Any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 4 . 10 of this Agreement. Upen—a lieu thereef,the-Ageney-shallhave the right, as its sole-arm exelas . ---nedy, te—terminate this Agreement in tits-,enti ety �l ineluding ! witheut / re the Parking Rights er pay the Piarehase Priee. Ewhe ore new proposal by -KKR azr'ca--has not been diseussed with Beveieper-vt KKR41509 10-17-94 DRAFT DDIA -5 8- 12 .2 I `ice of Default; Right to t%*re. If a heldez • e€-any Mortgaged files with the City Clerk a written notice requesting a copy of any notice of default given Developer hereunder and specifying the address for delivery thereof, then Agency shall deliver to such Mortgagee, concurrently with delivery thereof to Developer, any notice given to Developer with respect to any claim of Agency that Developer has not complied with the terms hereof or is otherwise in default hereunder. The failure of the Agency to • provide such notice, however, shall not impair or defeat the Agency's exercise of its rights or remedies under this Agreement or otherwise; subject to the rights of a fielder of any Mortgagee pursuant to this Section 12 . Each such helder e€-airy Mortgagee shall have the right (but not the obligation) for a period of sixty (60) days after receipt of such notice from Agency to cure or remedy, or to commence to cure or remedy, the claim of default or noncompliance set forth in the Agency' s notice. If any such default or noncompliance cannot, with diligence, be remedied or cured within such sixty (60) day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such default or noncompliance if such Mortgagee commences to remedy or cure within such sixty (60) day period, and thereafter diligently pursues and completes such remedy or cure. Notwithstanding the foregoing, ai:i-d subjeel--te tie--Agency's rights }e terminate the Agreement in the- vent a€-a- €e r ee l e s ure-er the giving-e f a deed—i n lieu theree€,- See-immediately previous eemment) if the default or noncompliance is of a nature which can only be cured by such KKR41509 10-17-94 DRAFT DDIA -5 9- r Mbwtgasea by or upon obtainin possession, such Mortgagee shall be deemed to have remedied or cured such default or noncompliance if such Mortgage;; shall, within such sixty (60) day period, commence efforts to obtain possession and carry the same forward with diligence and continuity through implementation of foreclosure, appointment of a receiver or otherwise, and shall thereafter remedy or cure or commence to remedy or cure the default or noncompliance within sixty (60) days after obtaining possession. 12 . 3 Bankruptcy. Notwithstanding the provisions of Section 12 .2 above, if any Mortgaged is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof to obtain possession of the Property by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Developer, the Mortgagee shall for the purposes hereof be deemed to be proceeding with diligence and continuity to obtain possession of the Property during the period of such prohibition if the helder Mortgage: is proceeding diligently to terminate such prohibition. 13 . TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY; DATE OF AGREEMENT. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and KKR41509 10-17-94 DRAFT DDIA -60- t delivered by OW Agency within twenty (2d')Wdays after this Agreement is signed by the Developer. If this Agreement is not so authorized, executed and delivered by Agency, then, upon notice by Developer to Agency to such effect, it shall be null and void and may not thereafter be authorized, executed or delivered. The date of this Agreement shall be the date it is signed by the Agency. KKR41509 10-17-94 DRAFT DDiA 14. AGREE4t9T MAY BE EXECUTED IN COUN RPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but such counterparts taken together shall constitute one Agreement. AGENCY: PALM DESERT REDEVELOPMENT AGENCY By: Carlos Ortega Executive Director DEVELOPER: THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership By: The Boorn Bennett Limited Partnership, an Ohio limited partnership, its general partner By: Boorn, Inc. , an Ohio corporation, its general partner By: John P. Boorn KKR41509 10-17-94 DRAFT DDIA -6 2 �.r EXHIBIT "A" . Redevelopment Plan KKR41509 10-17-94 DRAFT DDIA -1- EXHIBIT "B" The Property The following real property in the City of Palm Desert, County of Riverside, State of California, described as follows: Parcels 1 and 2 of Parcel Map 4655, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 7, Page 42 of Parcel Maps, in the Office of the County Recorder of said County. KKR41509 10-17-94 DRAFT DDIA -1- • EXHIBIT "C" Development Agreement [To Be Attached By Agency] KKR41509 10-17-94 DRAFT DDIA -1- EXHIBIT "D" [Reserved] KKR41509 10-17-94 DRAFT DDIA -1- EXHIBIT "E" Easement Agreement [Subject to substantial revision] Recording Requested by and When Recorded Return to: Documentary Transfer Tax: $ None Revenue and Taxation Code 11922 Easement Agreement • This Easement Agreement (this "Agreement") is made and entered into as of- the day of 199_ by and between THE PALM DESERT REDEVELOPMENT AGENCY (the "Agency") and The Madison Realty Partnership, Limited Partnership, a Delaware limited partnership (the "Developer") . RECITALS WHEREAS, Developer is the owner of that certain real property (the "Property") located in the City of Palm Desert, California and more completely described in Exhibit A attached hereto and hereby made a part hereof; WHEREAS, Developer has developed a shopping center (the "Shopping Center") upon the Property. The current configuration of the Shopping Center is approximately as shown on the site plan (the "Site Plan") attached hereto as Exhibit B and hereby made a part hereof; WHEREAS, Agency desires to acquire certain rights for public parking purposes over a portion (the "Public Parking Area") of the parking areas (the "Parking Areas") located from time to time on the Property; WHEREAS, Developer desires to convey such rights to Agency in accordance with the terms and conditions contained herein; and WHEREAS, Agency and Developer desire to agree on certain other matters with respect to the Parking Areas. NOW, THEREFORE, in consideration of the foregoing, the covenants and promises set forth herein, and other good and valuable consideration (including but not limited to the payment by Agency to Developer, pursuant to that certain Amended and Restated Disposition, Development and Implementation Agreement between Developer and Agency dated , 1994, of the "Purchase Price" , as defined therein) , Developer and Agency agree as follows: KKR41509 _ 10-17-94 DRAFT DDIA -1 N"WO 1. Easement/Control Over Public Parking Area. Developer hereby grants and conveys to Agency a nonexclusive easement (the "Easement") over the Public Parking Area for the Term (as defined in Paragraph 5 (Term] ) for Public Parking purposes. For the purposes of this Agreement, "Public Parking" shall mean parking which is fully accessible to all members of the public, without limitation as to their purpose for parking on the Public Parking Area or their destination, except for limitations set forth in that certain Parking Management Plan (the "Parking Management Plan") attached hereto as Exhibit C, any modification to the Parking Management Plan that may be implemented by Developer, subject to the written approval of Agency, and any other limitations, rules and regulations that may be established by Developer, subject to the written approval of Agency. The determination of the hours of operation of the Public Parking Area shall remain solely with- Developer, except that Agency shall have the right to approve any closure of the Public Parking Area prior to the closure of the Parking Areas other than the Public Parking Area (the "Private Parking Area") . 2 . Character of Easement. The Easement granted herein is a nonexclusive easement in gross, to be held and enjoyed by Agency and its successors and assigns, in common with Developer and the occupants of the Shopping Center and their invitees. 3 . Location of the Public Parking Area. The Public Parking Area shall contain two hundred (200) spaces and shall initially be located as shown on the Site Plan. Developer shall have the right to relocate the Public Parking Area from time to time, provided that (a) Developer shall have given at least twenty (20) days prior written notice of the new location, (b) the Public Parking Area is not located in more than two (2) separate locations on the Property, and (c) Developer shall have provided an access easement to Agency as to any portion of the Public Parking Area which is not contiguous to a public street. Developer shall also have the right, subject to Paragraph 7 (Obstructions) , to reconfigure the Shopping Center, including but not limited to the right to change the location of, add or subtract buildings, and the right (subject to the foregoing sentence) to change the size and layout of the Parking Areas and the parking spaces thereon. 4 . Term. The term (the "Term") of this Agreement shall commence on the date hereof and shall expire on the later to occur of (a) twenty-five (25) years after the date hereof or (b) the date on which the Property is no longer being operated as a Shopping Center in substantially the configuration of the Shopping Center as of the expiration of such twenty-five (25) year period, but in no event longer than forty (40) years after the date hereof. Notwithstanding the foregoing, Developer shall have the right to terminate this Agreement, at any time after ten (10) years after the date hereof, by KKR41509 10-17-94 DRAFT DD1A -2- sending a notic 'of such termination (the early Termination Notice") to Agency, which Early Termination Notice shall set forth the effective date (the "Effective Date") of such early termination (which date shall be at least thirty (30) days after the date of the Early Termination Notice) and shall state that Developer no longer intends to operate the Property as a Shopping Center in substantially the configuration of the Shopping Center as it was initially constructed. On or before the Effective Date of such early termination, Developer shall pay to Agency an amount calculated by multiplying the Purchase Price paid by Agency to Developer on or about the date hereof by a fraction, the numerator of which is the number of years (or fractions thereof) from and after the Effective Date to the expiration of the twenty-fifth (25th) year after the date hereof and the denominator of which is twenty-five (25) . Upon the expiration or earlier termination of this Agreement, this Agreement shall automatically • terminate without further action by the parties hereto, but either party shall, promptly after receiving a request therefor from the- other after the expiration or earlier termination of this Agreement, execute and deliver a termination agreement, in recordable form and otherwise in form reasonably satisfactory to both parties. Upon the expiration or earlier termination of this Agreement, the Parking Management Plan shall automatically terminate without further action by the parties hereto, but either party shall, promptly after receiving a request therefor from the other after the expiration or earlier termination of this Agreement, execute and deliver a termination agreement, in form reasonably satisfactory to both parties, with respect to the Parking Management Plan. 5. Maintenance of the Parking Areas. During the Term, Developer shall maintain, or cause to be maintained, in good repair the Parking Areas and all necessary landscaping, lighting, paving, directional signage and other appurtenances necessary to the maintenance of the Parking Areas. All maintenance of the Parking Areas shall be done in accordance with all applicable Federal, . State and local statutes, ordinances, rules, standards and regulations. This paragraph shall not be construed to require Developer to restore any Parking Areas damaged by fire or other casualty, but Developer shall make any decision relating to such restoration in a manner that does not discriminate against the Public Parking Area. 6. Bodily Injury and Property Damage Insurance. During the Term, Developer shall furnish, or shall cause to be furnished, to Agency promptly after Agency's request therefor certificates of public liability insurance in the amount of One Million Dollars ($1, 000, 000) combined single limit, naming Agency as an additional insured. Said insurance shall cover comprehensive general liability including, but not limited to, contractual liability; acts of subcontractors; premises- operations; explosion, collapse and underground hazards, if applicable; broad form property damage, personal injury including libel, slander and false arrest. Developer shall also furnish, or shall cause to be furnished, to Agency KKR41509 10-17-94 DRAFT DDIA -3- " promptly after Agency's request the* or proof of comprehensive automobile liability insurance covering owned, non-owned and hired vehicles, combined single limit in the amount of One Million Dollars ($1, 000, 000) each occurrence and proof of workers compensation insurance. Any and all insurance policies required hereunder shall be obtained and maintained at all times from insurance companies admitted in the State of California and rated at least B+:VIII in Best's Insurance Guide. All said insurance polices shall provide that they may not be canceled or the limits of liability reduced below those required hereunder unless Agency receives written notice of cancellation or reduction at least thirty (30) calendar days (or such lesser number of days as may be customary in the insurance industry from time to time) prior to the effective date of cancellation. Any and all insurance obtained by Developer hereunder shall be primary to any and all insurance which Agency may otherwise carry, including self insurance. Any insurance policies governing the Public Parking Area as obtained by Agency shall not be transferred from Agency to Developer. 7. Obstructions. Although the Easement shall not encumber the Private Parking Area, Developer agrees that it will not construct any fence or barrier between the Public Parking Area and the Private Parking Area which materially restricts access between the Public Parking Area and the Private Parking Area. This paragraph shall not be construed to prevent Developer or others from constructing buildings or other improvements from time to time upon the Parking Areas, provided that such access is not materially restricted. 8 . Entire Agreement. This Agreement contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed. Any oral representations or modifications concerning this Agreement shall be of no force and effect. This Agreement may be amended only by a subsequent document in writing, signed by the party to be charged. 9 . Approvals. Approvals and consents required of Agency hereunder shall not be unreasonably withheld, and Agency's approval or disapproval shall be given within the times set forth in this Agreement, or if no time is given, within thirty (30) days after request therefor. The failure of Agency to approve or disapprove within such time limits shall be deemed an approval. 10. Attorney's Fees. In the event of any controversy, claim, dispute, action or proceeding relating to this Agreement or any breach thereof, the prevailing party shall be entitled to recover from the losing party, in addition to all other relief available to it, its reasonable attorneys' fees and costs. 11. Binding Effect. This instrument shall be binding on and shall inure to the benefit of Developer and Agency, and their respective successors, assigns, heirs, executors and administrators. Notwithstanding the foregoing, the transferee KKR41509 10-17-94 DRAFT DDIA -4- or. assignee of Nary of the rights and intents of Developer shall have no duty or obligation to perform any affirmative covenants of Developer under this Agreement, unless such affirmative covenants are expressly assumed in connection with the conveyance of such rights and interests. In the event such affirmative covenants are so assumed by any transferee or assignee, no subsequent failure by such transferee or assignee (or any subsequent transferee or assignee) to perform or comply with such affirmative covenants shall be deemed a default by Developer hereunder and, similarly, no failure of Developer to perform or comply with its affirmative covenants which have not been so transferred or assigned shall consti- tute a default hereunder with respect to such transferee or assignee (or subsequent transferee or assignee) . IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day first above written. AGENCY: PALM DESERT REDEVELOPMENT AGENCY By: Carlos Ortega Executive Director DEVELOPER: THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP, a Delaware limited partnership By: The Boorn Bennett Limited Partnership, an Ohio limited partnership, its general partner By: Boorn, Inc. , an Ohio corporation, its general partner By: John P. Boorn [ A T T A C H N O T A R Y ACKNOWLEDGMENTS] KKR41509 _ 10-17-94 DRAFT DDIA -5 EXHIBIT "F" KKR41509 10-17-94 DRAFT DDIA -1- C 13 0�y ©f] p'BS M 063ort 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260-2578 TELEPHONE (619) 346-0611 FAX(619)341-7098 October 7 , 1994 Mr. Paul Anthony Heiss The Madison Realty Partnership 2218 Main Street, Suite 208 Santa Monica, California 90405 Re: Letter of 28 September 1994 Dear Mr. Heiss : I received your letter regarding the proposals from International Parking Design, Inc . , and Linscott, Law & Greenspan for preparation of a parking management plan for site area 5 . As far as the city is concerned, either firm is acceptable to provide this service. If you have any further questions, please feel free to contact me. Very truly yours, s AMON A. D AZ ASSISTANT CITY NAGER/ DIRECTOR OF COM UNITY DEVELOPMENT /tm Recycled Pape, .+ City of Pala Desert 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260-2578 TELEPHONE (619)346-0611 FAX(619)341-7098 PLANNING COMMISSION MEETING NOTICE OF ACTION Date: October 5, 1994 Madison Realty/Sunrise Co. c/o Phil Smith 42-600 Cook Street Palm Desert, California 92260 �,/Re: Ahmanson Commercial Development Plan Amended and Restated Development Agreement The Planning Commission of the City of Palm Desert has considered your request and taken the following action at its meeting of October 4 , 1994 . PLANNING COMMISSION RECOMMENDED APPROVAL OF THE AHMANSON COMMERCIAL DEVELOPMENT PLAN AMENDED AND RESTATED DEVELOPMENT AGREEMENT TO CITY COUNCIL BY ADOPTION OF RESOLUTION NO. 1663, WITH THE ADDITION OF TRAFFIC MITIGATIONS IDENTIFIED BY THE CITY ENGINEER. CARRIED 5-0. Any appeal of the above action may be made in writing to the Director of Community Development, City of Palm Desert, within fifteen ( 15) days of the date of the d cision. �e4or� • RAMON A. DIAZ , S C RY PALM DESERT PLANNI COMMISSION RAD/tm cc : Coachella Valley Water District Public Works Department Building & Safety Department Fire Marshal Recycled Paper s PLANNING COMMISSION RESOLUTION NO. 1663 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT AND AMENDED AND RESTATED DEVELOPMENT AGREEMENT CONCERNING THE COMMERCIAL DEVELOPMENT ON THE SOUTH SIDE OF EL PASEO BETWEEN SAN PABLO AVENUE AND LARKSPUR LANE.. PROJECT TITLE: AHMANSON COMMERCIAL DEVELOPMENT PLAN AMENDED AND RESTATED DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 4th day of October, 1994, hold a duly noticed public hearing to consider the request of MADISON REALTY/SUNRISE CO. for approval of an amended and restated development agreement concerning the commercial development on the south side of El Paseo between San Pablo Avenue and Larkspur Lane; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the amended project impacts remain consistent with the findings of the previously Certified Environmental Impact Report SCH#88122603 and .as mitigated will not have a significant adverse impact on the environment and a Negative Declaration of Environmental Impact has been prepared; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said planning commission did find the following facts and reasons to exist to justify recommending approval of said amended and restated development agreement: The Amended and Restated Development Agreement remains consistent with the goals and objectives of the city' s Zoning Ordinance, Commercial Core Area Specific Plan, and General Plan. NOW, THEREFORE, BE IT RESOLVED by the Planning Comfiission of the City of Palm Desert, California, as follows : 1 . That the above recitations are true and correct and constitute the findings of the commission in this case. 2 . That a Negative Declaration of Environmental Impact Exhibit "A" and the Amended and Restated Development Agreement Exhibit "B" are hereby recommended to the city council for approval . PLANNING COMMISSION RESOLUTION NO. 1663 PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 4th day of October, 1994, by the following vote, to wit: AYES: BEATY, FERNANDEZ, JONATHAN, WHITLOCK, SPIEGEL NOES: NONE ABSENT: NONE ABSTAIN: NONE ROBERT A. SPIEGEL, Chairman ATTEST: �e4: RAMON A. DIAZ , S cr ry Palm Desert Planni Commission 2 *Awe '14W • MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 VIII . PUBLIC HEARINGS /"A. Continued Case Ahmanson Commercial Development Plan Amended and Restated Development Agreement - MADISON REALTY PARTNERSHIP/SUNRISE COMPANY, Applicants Request for approval of a Negative Declaration of Environmental Impact and amendment of an approved Development Agreement associated with the Ahmanson Commercial Development Plan increasing the allowable gross leasable area from 167,000 square feet to 197, 000 square feet including 25% restaurant for site area 5, a 10 . 3 acre parcel on the south side of El Paseo between San Pablo Avenue and Larkspur Lane. Mr. Drell explained that in 1989 Ahmanson Commercial Development Company came to the city with a number of properties throughout the commercial area and proposed to do preliminary planning and an environmental impact report assessing the cumulative impacts of all of the projects on the Highway 111 and E1 Paseo commercial area. One of those sites was the subject site, which was formerly the Sunlodge Colony 10 . 3 acres on El Paseo. Also included in the EIR was the Desert Crossing site now under development, the site on Town Center Way where Trader Joe' s was located, the automall site at Highway 111 and E1 Paseo, and a large 55 acre site west of the Desert Crossing site which was dedicated as permanent open space. Chairperson Spiegel asked if that included the development across from the Town Center Mall . Mr. Drell replied no, that the Marshall ' s center was developed by Ahmanson, but it was prior to this process; it was done independently. Mr. Drell said that associated with the EIR for all the sites was a development agreement which set out the basic parameters for the developments . It defined them in rough terms for area so they could do the EIR, and established from mitigation measures within the EIR exactions, which were physical improvements that would be required similar to setting forth the conditions of approval for each of the sites . In addition to the development agreement, it gave the developer a vested right and the term of the agreement was for 10 years to at least the square footages called out under each of the site areas . Secondly, in addition to the 2 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 foot addition was analyzed, it resulted in only a 4% increase in traffic volumes . The computer model used to analyze traffic generation in the EIR determined that there would be no additional traffic mitigations required than originally required in the EIR. The requirements and traffic improvements in the EIR were still applicable. On the basis of that staff prepared a Mitigated Negative Declaration of Environmental Impact. The public works department in reviewing the traffic study and applying their own local specialized knowledge recommended some additional improvements over and above those recommended by the EIR. They involved the intersections right around the project: San Pablo/El Paseo and Larkspur/El Paseo. They also suggested the rewording of one condition from the EIR. That included: creation of an exclusive right turn lane for northbound San Pablo traffic to eastbound E1 Paseo. This was traffic leaving the project onto San Pablo turning right eastbound on E1 Paseo. While the traffic engineer spoke of re-striping, the city' s traffic engineers felt that there might not be enough room within the present curb to curb area to adequately create that lane; therefore there might be some reconstruction necessary--it was reworded to "creation" . That meant doing whatever was required to facilitate the right-hand lane. Also required would be modification of existing median left-turn pockets on E1 Paseo/San Pablo and E1 Paseo/Larkspur to allow for additional vehicle stacking. Those were left-turns that would be going from E1 Paseo either at San Pablo into the project or Larkspur down to the project. Presently those were fairly short turn pockets that did not have enough stacking room to handle what they hoped would be a lot of traffic. He said this simply involved tearing out curbing and extending the turn pocket into the existing median. The last was the southbound lanes on San Pablo at E1 Paseo. In analyzing the current situation which was a dual purpose left-turn through lane and an exclusive right-turn lane, the computer said it would work--that the volumes of traffic that would now want to go through El Paseo and enter the project parking lot would not cause a disruption to that intersection. The sharing of the left- turn and the straight-through would still work. It was the feeling of the city engineer that assuming that the project was successful and generated spinoff traffic and activity throughout the street, that ideally there should be an exclusive through lane for traffic going to this project and should not be sharing the signal with the left-turn movement. The alternatives to that through lane was lengthening ( for a five-phase signal) all southbound traffic and the left turn would go exclusively at one time, then the northbound traffic 4 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 would go and increase the length of those lights relative to the westbound traffic on E1 Paseo. Those would have to be shortened to prevent backup on San Pablo extending towards Highway 111 . The goal was to get as much traffic through that intersection in the shortest amount of time to minimize the backup onto San Pablo. The present problem was the physical geometry of the curb and right of way did not permit the additional lane without the elimination of sidewalks in front of the hexagonal building. It was the considered opinion of the city engineer that this improvement should be made for the project to proceed, or will be required sooner or later. The next step was to decide if it was an impact specifically triggered by this project and if it should be part of the exactions included under "Exhibit D" for required street improvements . It was the recommendation of the planning department that the conditions be included; it then became a point to be considered by the city council and the RDA in reviewing the development agreement and DDIA relative to the timing of such an improvement and who would pay for it. Staff recommended that those conditions identified by the city engineer be included as mitigation in the negative declaration with the modification of the original condition for the creation of the exclusive right turn lane on San Pablo and the addition of these three requirements to the Exhibit D Exactions for Street Improvements . Staff recommended that the planning commission recommend approval to city council of the negative declaration and development agreement amendment. Commissioner Jonathan noted that the 200 additional parking spaces referred to in the report were already included in the original development agreement for the 167 , 000 square foot proposal; Mr. Drell concurred. Commissioner Jonathan asked that if they were adding 30,000 square feet, was staff proposing an additional 120 parking spaces in addition to the extra 200 . Mr. Drell explained that the 200 were in addition to those required in the zoning ordinance. The city would require 4/1000 for the 30,000 square feet plus 200 . Commissioner Jonathan noted that would calculate out to 120 + 200, which would be 5/1000 . Mr. Drell concurred. Commissioner Jonathan asked who would define a comparable retailer--it was up to the city, but were there parameters set forth; if the city disagreed with Ahmanson or Sunrise, was the city setting itself up for involvement by the attorneys . Mr. Drell said that was a good question and should be directed toward the attorneys . Mr. Hargreaves stated he had not looked at that particular issue, but generally speaking in the interpretation of the contract if 5 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 it ever came to that the court could look at whatever the parties intended at the time and come up with some kind of definition if it wasn't clearly specified in the agreement. Commissioner Jonathan said his concern was that if there wasn't a specific definition, then the city was left with one alternative and that was the legal process . Mr. Drell said that there was some language in the DDIA that it was within the sole and absolute discretion of the city. The character of the project was such that the developer was looking for the same function from this retailer as the city and would make the success of all the other shops and would be a magnet to draw everyone past the other shops . He did not see a conflict. Commissioner Jonathan addressed the issue of the $5 million from RDA; he asked if the city was buying a specific easement. Mr. Drell said it was a public easement specifically over 200 spaces, pursuant to the parking management plan which covered the entire lot and specified the location of the spaces . The spaces would be similar to the Town Center or any other commercial development. The city would have additional rights for the 200 spaces . The other spaces were no different from any other commercial lot. Commissioner Jonathan asked what exactly the city was getting; were they spending $5 million for an easement for 200 spaces . Mr. Diaz stated that they were getting the right to have 200 spaces within the entire parking structure--staff did not want the 200 parking spaces to be in the "north forty" . What the city was paying for was the right to have a parking easement, over 200 parking spaces, within the parking structure and the parking management plan that would be produced would assure that: 1) the 200 spaces were not in the back forty; and 2 ) that the parking structure would be operated in the most efficient manner possible. They were going for an easement for 200 spaces in the overall parking structure--that was what the city was getting for $5 million, or whatever the amount turned out to be at the end of negotiations . Commissioner Jonathan noted that the city was requiring 5 spaces per 1000, which the city had done before with developers, and this time the city was paying $5 million for it. Mr. Diaz stated that the city was paying $5 million to allow this development. Mr. Drell felt that part of the justification could be that the character of the shops on E1 Paseo and in this center would be similar to those generated, which was typically less volume than the Town Center. The argument could be made that this center could get by with 4/1000 parking spaces . Mr. Diaz stated that they hoped that at any one time there would be 200 people parking in that lot and not shopping in that center, but along E1 Paseo. The intent was to provide 200 additional spaces for everyone on 6 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 the street. Mr. Drell stated that 4/1000 was the standard that all the other centers in the last 15 years had been developed at--it was a requirement of the C-1 zone. Commissioner Jonathan said the matter before the commission was to increase the square footage from 167,000 to 197,000; he asked if there was any "quid pro quo" and what was in it for the city. Mr. Drell said that the feeling was that for this center to work it needed a major department store. That major department store would be larger than 30,000 square feet, but developers made money on the small shops . They gave away the major department store space. They needed to attract the major department store and still have enough space left over for the rest of the project to pay the bills . The city had been told by several sources who have tried to do projects on this site that to attract a major retailer they needed more room. Chairperson Spiegel said that besides the $5 million, the city should do certain things in Exhibit D. Mr. Drell clarified that those were conditions of approval and were with the original plan. Those three that were added were the result of the city' s re-examination on the refinement of the recommendations from the EIR. In the agreement where it refers to the EIR it should now refer to the EIR and Negative Declaration of Environmental Impact since it was restating the conditions of the EIR per the increased square footage. He said that the $5 million was not in this agreement at all; it was in the agreement going before the redevelopment agency. In the agreement before the planning commission was the addition of the 30,000 square feet, and in response to that the city was requiring some additional street improvements . He said it could be argued that some of those street improvements might have been required at 167,000 square feet as well . Chairperson Spiegel opened the public testimony and asked the applicant to address the commission. MR. WILLIAM BONE, Chairman of the Board of Sunrise Company and a resident in Indian Wells . He stated that the $5 million was not a new issue, it was in the prior agreement that was done several years ago. What was being done was changing the designation of the 200 spaces . In the original agreement there was a specific 200 spaces; the parking management plan would make it more manageable. He understood that the easement was over all the spaces and not just for 200 spaces, but the common use of the entire facility subject to the 7 MINUTES PALM DESERT PLANNING COMMISSION ,OCTOBER 4, 1994 management plan, so they could not designate any of them for their project only. He said there would be a lot of spillover of pedestrian traffic. He felt on the city' s discretion on the replacement tenant, it was clear in the agreement that the city had sole discretion if they proposed a replacement tenant to Saks, they had the unilateral right to accept it or not. They agreed to that and were not troubled by that. On the issue of what' s in it for the city, if the Saks deal was made, about $150,000 per year in sales tax revenue to the city would be generated. The Saks deal was not a good deal for them and he felt the project would do great without them, but Saks would be terrific to the city of Palm Desert. It would add an additional draw on E1 Paseo and would do good things for E1 Paseo in general . It would help in that regard, but department stores did tough deals--they did not want to pay any land rent and as described earlier, they had to be subsidized. They could not take the square footage out of the basic 167 , 000 square feet and make the economics work. They had to collect the rent from that amount and they would have a series of mini-anchor tenants . The concept was if they were to have a traditional department store, it would have to just pay rent to amortize the cost of their building, not anything else. The benefit to the city was a lot of sales tax revenue and helping the rest of E1 Paseo have a core and heart and soul . He said that Sunrise Company had developed many projects in Palm Desert including: Rancho Las Palmas when it was partially in Palm Desert, Monterey Country Club, The Lakes, Palm Valley Country Club, Indian Ridge and the Desert Springs Marriott. They had been part of the whole enhancement of the image in an upscale way of the city of Palm Desert in the last 20 years . He felt the leadership of the city had been very visionary in making this the central destination for the whole valley. This project "The Gardens of El Paseo" would be a terrific addition to the continuation of the progress of the city of Palm Desert. Their development team was comprised of Sunrise Company and Madison Realty Partnership. He stated that back in the 60 ' s he was a shopping center developer and he developed three regional shopping centers like the Town Center and several neighborhood shopping centers . They had substantial retail development expertise and in the last 20 years they had concentrated more in the residential country club business . They had worked with Madison Realty on three other specialty retail projects and had worked together 8 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 for seven or eight years . The two principals, John Borne and Jim Bennett, had been in the retail development for many years. John Borne, the President of Madison Realty Partnership, prior to that was Chairman of the Board and CEO of Campo Development, which was the real estate development arm of Federated and Allied Department Stores . They developed shopping centers all over the United States and Canada. Prior to that he was the President of Federated Stores Realty; prior to that he was with the Ralph' s Company. His whole career was in upscale retail development. The other principal was Jim Bennett, who headed up the leasing operation. He was also with Federated and Campo and Ralph' s and had worked together with John Borne for over 20 years on these types of projects . The other partner in Madison Realty was The Capital Guidance Corporation, an international investment company in the Washington D.C. They were a highly experienced, financially strong team that could execute and carry this project through to fruition. Their role was participating in the planning and design of the project and they would be the project managers and oversee the project management and all the local activities . The Madison Group would work with them on the design and they would handle the financing and leasing. The project overview was to develop a plan that was an open air experience, not an enclosed mall shopping center. It was to have a variety of major national tenants not currently in Palm Desert. The architectural design would be fitting in scale with El Paseo and would help anchor the central part of E1 Paseo and give it a real life. He felt this would be the energy/magnet that would draw people to the central part of E1 Paseo. He said that the project worked fine with 1671000 square feet; if they couldn' t make a fair deal with Saks or an equivalent, they wanted to go forward and develop with the 167,000 square feet and anchor it with a series of mini-anchors and they would do fine. He introduced Paul Heiss from the Madison Realty Partnership, who would talk about the leasing and tenant mix and about the site plan. MR. PAUL HEISS, from the West Coast Office of Madison Realty Partnership, stated that prior to Madison Realty he ran the Southern California Division of Walt Disney Imagineering. He said their concept for the project was one of adding to El Paseo. He believed they would be tenants of high quality, but not high price points . 9 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 Four major categories included apparel and accessories, leisure, home business accessories, and food and specialty. All tenants he mentioned they had been in direct contact with and shown them the plans and they expressed extremely strong interest. They included Anne Taylor, Banana Republic, Pottery Barn, Williams Sonoma, Patty Bower Home, Wolfgang Puck Cafe, Cheesecake Factory, and Sharper Image. All of those tenants were not high end, small specialty retailers, but of the size of 5,000-9,000 square feet and could be a draw in and of itself. They were national retailers; they advertised and brought customers to their door. They could retail from one or two levels and were very strong and credit worthy and could pay the rent to help subsidize Saks . He apologized that Jim Bennett and John Borne were not present, but they were in New York City to meet with Saks to help confirm some of their interest in this project. They had numerous discussions and had reviewed the plan, they had participated in developing the plan and they agreed with one: the concept of a two level store that would help energize a second level and all of El Paseo; that they were very close in economics including the addition to 197,000 square feet and they were tremendously excited about seeing this project move forward. They were not the only tenant for the project and on Friday they would meet with Neiman Marcus and they had expressed extreme interest. He said they would be meeting with Nordstrom in two weeks and noted that Saks was not the only deal, but he felt it would be the best deal . He said that the plan before the commission was the best they had seen so far. They had obtained three different architects . They had paid them to develop concepts for this project to show what 167,000 square feet and 197,000 square feet would look like with parking at 4/1000 plus 200 and a very high amenity level . He said they had not selected an architect yet. He stated that they were trying to respect the El Paseo streetscape that had development at the street front, pedestrian walk, and develop an internal courtyard with new tenants to front upon the courtyard in one or two levels . One level of parking would be on grade and one level of parking in a structure above. He stated that the site increased in slope from E1 Paseo to Shadow Mountain approximately 14 feet. They were able to slide the first level parking underneath the deck parking so that the deck would sit a few feet above grade at Shadow Mountain. That grade was equal to the upper level of Saks and the restaurants so that the decks would not be 10 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 obtrusive to the neighboring residential parcels and it would energize the retail level . Most of the large mini anchors, a Pottery Barn, right now Madison Realty Partnership was doing a 12,000 square foot Super Pottery Barn in Fort Worth, Texas . That concept had 6,000 square feet on the ground floor and 6,000 square feet on the second floor. Those retailers circulated vertically. This was not the kind of project they would conceive as having a vacant second level . There would be restaurants above, major mini-anchor tenants, Super Pottery Barn, Eddie Bower Home, with a walk through atrium up and down that anchored the tenants and Saks . He said he was extremely excited about the project and would like to come back to the commission and confirm their selection of an architect and confirm their design choices on how this would energize El Paseo. Madison Realty Partnership had been involved in projects that re-energized communities . He believed it would be a new heart for E1 Paseo and in the center courtyard they would program activities and non-profit activities, a high level of design and he believed strongly that this project could energize all of E1 Paseo in a way that had not been seen before with the small shops . Mr. Bone said that his last comment had to do with the three additional conditions being recommended that were not part of the original approval and development agreement of 1989 . The first one dealing with traffic re-signalization was fine. The third one regarding modifying medians was fine with them and was necessary. But they had a big problem with the widening of San Pablo and that whole discussion. He noted that the computer said it was not necessary and would work without it, the independent traffic consultant said the same thing. If it was needed, there were other potential ways of solving the problem. They could make it one-way, San Pablo could be cul-de-sacced near the south end--there were other ways to do it without destroying the sidewalks or having to remove a building which was expensive. Through this project they would be contributing $300,000 in TUMF fees . The problem at E1 Paseo, if one existed, was an existing condition and was a regional kind of problem and they did not think they should be stuck with mitigating something that may not be necessary and was not necessarily linked solely to this project. He felt it should be covered by the TUMF fee and management of it. Other cities had used one-way streets, but that was a last resort and might not be 11 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 necessary. The computer and independent consultant might be right, and the city staff might be right, but he did not want to take the most extreme case and do it and then find out it was not necessary. The project economics were very tight and it could not stand the additional financial burden and he urged the commission to approve the project without that condition. Commissioner Jonathan noted that Mr. Bone stated that the project did not need Saks Fifth Avenue and asked if he was confident that without Saks or a comparable major tenant that leasing would proceed in the same way as it would with that kind of major tenant. Mr. Bone replied yes, because he felt this was a specialty retailing project, not a regional shopping center. Specialty retail centers did not have department stores and the retail tenants described were used to that and they knew how it worked and liked it and were located in many similar places and did great. There was a different tenant mix and it fit a different niche--he felt the time was now to develop and would fill a niche that was presently vacant. Commissioner Jonathan said that Mr. Bone was the applicant and they were coming back with basically the same development agreement except they were asking for an additional 30,000 square feet and 25% restaurant mix--Mr. Bone told commission that they did not really need it, and the city said there was more sales tax in it, so he wondered who the real applicant was here: Mr. Bone or the city and if they did not want the 30, 000 additional square feet, why was it before the commission. Mr. Bone said that a lot of people on El Paseo would like to see it; the driving force behind Saks Fifth Avenue was more the people up and down the street then them. He said it might be their feeling that Saks would be a draw; there had been substantial emotional investment made in the concept of bringing an additional tenant like that to that location and those discussions went on before. He informed commission that they started on this project in 1990 . They tried to make a deal with Ahmanson and couldn't. Ahmanson wanted them to take the Desert Crossings site and this property and they did not want that because they were specialty retailers . In the meantime, the Saks discussion got started by their predecessor and developed a life of its own. They were not opposed to Saks, but felt it was not mandatory; they thought it would be great, but it was not a condition of success for the project. Their preference was to have them, if they could. Commissioner Jonathan asked what Mr. Bone' s time table was for the project. Mr. Bone said it would be under construction next summer and open for the fall season of 1996 . 12 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 Chairperson Spiegel said there were rumors that Magnum' s would be going out of the Town Center and that Saks might be interested in locating in the Town Center and Mr. Bone had mentioned Neiman Marcus and possibly Nordstroms . He asked if they had considered Bloomingdales or Lord and Taylor. Mr. Heiss replied that the market was too small here for them. Mr. Bone said that most department stores wanted much larger stores, like Nordstroms, wanted 200,000 square feet and to be in centers like the Town Center--that was their traditional home and there were only a few "department stores" that wanted to locate in a scale appropriate for this project. If they had one department store the size of Nordstroms, there would not be enough room for anything else on the site. Saks was the most likely candidate because they recently opened a store in Naples Florida that was very successful and was a similar size specialty shop and they were looking for a niche that was different from Nordstroms and Lord and Taylor and the others . Chairperson Spiegel asked Mr. Bone if the project went without Saks, if they would stay with the same time table for development and if they still wanted the additional square footage. Mr. Bone replied yes . Chairperson Spiegel asked if anyone wished to address the commission in FAVOR or OPPOSITION to the proposal . MR. BOB SNIDER stated that he was speaking on behalf of his mother, who was 80 years old and not able to attend. He said that she owned one of the 30 condominiums directly west of the project in a small development called E1 Paseo Village. He said that he was not opposed to the project and felt most people in that development weren't, but he wanted to express some concerns . He stated that one point lost in the discussion was that this project was bounded on three sides by residential housing. That made it different from the other projects that were part of the redevelopment plan. All the projects to the west were either isolated or in a commercial zone. This one wasn't and the historical reason for that, going back to 1989, was quite controversial five years ago as to what should be done about the Shadow Mountain half of the zone. He said that El Paseo was a commercial street for its entire length and Shadow Mountain was largely a residential street with R-3 zoning or similar. The issue became what to do with the block in between E1 Paseo and Shadow Mountain and when looking at the zoning map, the entire parcel between Shadow Mountain and E1 Paseo was split so that the northern half of the block 13 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 was all commercial and the southern half was all residential with the exception of this parcel . He felt that was a tough decision five years ago--on one hand the street badly needed an anchor and this was the geographic center of the street and was a beautiful opportunity to put that anchor in. On the other hand, this superblock was the only one on Shadow Mountain that was commercial; all the rest of Shadow Mountain was residential . He said he was not asking the commission to revisit that zone, but he wanted to suggest that 1100 cars was quite a few to put next to residential zones . When Commissioner Jonathan asked what the quid pro quo for the city' s contribution to the project was, he felt there were three that the planning commission could impose or ask the city council/RDA to impose. The first was that if the project was to generate the kind of traffic they hoped to get, the two side streets needed to be closed on the northern half of the project so that it did not impact on the residences to the south. He expressed concern about the location of the entrance of the project in relation to the entrance to E1 Paseo Village and suggested that if the parking entrance was to the north, that would less of an impact on the homeowners; to the south there would be an impact on homeowners and future homeowners . He recommended that to mitigate the impact on the neighboring area by requiring that the parking lot entrance be placed somewhere else. Also, while the grade rose toward Shadow Mountain and it was easier to build a two story garage, no one wanted to live next to a parking lot with an excess of 1000 cars . He asked the commission to require that the developer provide substantial mitigation to protect the adjacent residential parcels from the appearance of the parking lot. Third, if the traffic generation was as everyone hoped, Shadow Mountain would carry a lot more through traffic than it did today and the reason for that was that E1 Paseo would become more congested and there would be protection for turns, but people needing to get across town would take Shadow Mountain more. In the ten years they owned the condo there had been a lot more traffic. He asked that commission keep in mind mitigation measures along Shadow Mountain, certainly if the side streets were not closed, but in particular if they were. He said he was not opposed to the project, but by historical accident it abutted a residential zone and he implored the commission to keep that in mind. 14 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 Chairperson Spiegel told Mr. Snider that his comments were well taken and he noted that while the commission' s action tonight was not a determination of the plan, and it would be coming before them at a later date, he appreciated his comments and would take them into consideration and he recommended that when the final project came before the commission for approval, that he appear before the commission again. MR. RICHARD KREEDMAN, Indian Wells resident, stated that his family had owned nine condominiums on Shadow Mountain for many years . He was in favor of the development and increasing the size of the development to 197,000 square feet because there was a tremendous need for an anchor tenant there to draw business to the center. But he felt there should be some mitigation along Shadow Mountain. Chairperson Spiegel suggested that Mr. Kreedman come back before the commission when the project was before the planning commission. Chairperson Spiegel closed the public testimony and asked for commission comments . Commissioner Whitlock stated that Mr. Bone has always brought Palm Desert a lot of energy and excitement with his residential developments and there was no question that he would do that again with this specialty shopping center. She wished him a great deal of success in the future negotiations with RDA and the city council . She was in favor of approving the amendment to the development agreement, but she wanted to hear about the engineers exactions for the street improvements and comments about the third exaction that Mr. Bone would like the commission to reconsider, because she felt that his comments were very valid. Mr. Diaz said that what the commission was doing was making a recommendation to the city council . He felt that in terms of what was recommended to the council should be more conservative than they might otherwise be. Also, the condition they were placing on the project with regard to the intersection of San Pablo and E1 Paseo, it was not a matter of who paid for it and the DDIA with RDA could take care of that. What they were talking about was bringing that into account. The computers say it was not a problem; computers did not drive cars . He felt there was a problem there that could be resolved. In speaking to Mr. Drell, he felt that 15 MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 the public works department could come up with a way of adding that additional lane without as much cost, but he felt it had to be there as a condition of approval on the development plan. To take it out at this point and if there was a problem, they would come back to the planning commission and ask how they could approve this and not take care of the added traffic that would be generated by the development. He felt the condition should be there and taken to council . If they wished to, as the council and redevelopment agency, they could remove that condition or leave it there and figure out a way to implement it. The commission would be giving them the information that they felt it was necessary. If they feel the commission' s wrong, fine; if they feel they are right and want to pay for it they could. Commissioner Jonathan agreed that it should go to the council for determination. He said that it was a wonderful project and they had seen it before and they were not there to discuss any major changes, just a little more square footage and higher restaurant usage. He said that he did go by the history of applicants and felt that Sunrise had a wonderful history in Palm Desert and was confident that they would do a wonderful job. He stated that he would be prepared to support the application. He did want to express his concern about the $5 million expenditure. Although that was not a change, because they were having an amendment to the agreement, that put everything back onto the table and started a new ten years and every aspect of the agreement under consideration. He said that was an issue they were not prepared to address as a planning commission, but it was a part of the agreement, which was one reason he did not like development agreements . They were really complicated and they were signing off on things they were not particularly qualified to do. His point with regard to the $5 million was to urge the council to re-examine that expenditure and consider if that was an appropriate use for RDA funds . If the city needed 200 parking spaces, he felt it could be accommodated on far less than an acre and an acre in the heart of E1 Paseo would not cost $5 million including construction. He was not sure where the $5 million was really going or whether they needed an additional $150,000 in sales tax revenue; that would be over a 50 year pay back including the time value of money. He did not think it was his job to find out what was going on there, but he did not want to let it go without at least urging the city council to give careful reconsideration to the use of those RDA funds . Other than that, he was fully in support of the application. 16 rr' MINUTES PALM DESERT PLANNING COMMISSION OCTOBER 4, 1994 Chairperson Spiegel stated that his personal feeling was that they had to look beyond the project to see what was happening on El Paseo and how it had its ups and downs . This kind of a project in his experience would rejuvenate the entire area and would build E1 Paseo to the east, which was needed. To the west was developing, but to the east was kind of slow and there were a lot of empty banks and buildings . El Paseo was one of the cornerstones of Palm Desert and did not feel that they could look at just the $150,000, but the total E1 Paseo development and see what it was worth and he felt it was worth a lot. He was totally in favor. Action: Moved by Commissioner Jonathan, seconded by Commissioner Whitlock, approving the findings as presented by staff. Carried 5-0 . Moved by Commissioner Jonathan, seconded by Commissioner Whitlock, adopting Planning Commission Resolution No. 1663, recommending to city council approval of the Amended and Restated Development Agreement and Negative Declaration of Environmental Impact with additional traffic mitigations identified by the city engineer. Carried 5-0 . B. Continued Case No. 4341 SA - B-Y-J PARTNERS for BURGER KING, Applicant Request for approval of an exception to Section 25 . 68 . 310(A) of the zoning ordinance to allow an additional freestanding sign at 73-547 Highway 111 (Jensen' s shopping center) . Mr. Diaz noted that this item was continued and the main issue was the color of the red in Burger King when the sign was internally lit. The architectural commission looked at this . The applicant agreed to have the lighting outside the sign, rather than inside, so that would hopefully solve the concerns of the commission with the internally lit sign. Staff recommended approval . He said that the commission might want to add a condition that non-opaque plastic be placed on back of the red on the Burger King sign so that at a later date if a future commission decided to approve an internally lit sign, the internally lit Burger King red color would not shine through. 17 PROOF OF PUBLICATION This space is for County Clerk's Filing Stamp (2015.5 C.C.P.) RECEIVED STATE OF CALIFORNIA '94 BUG 19 AM 8 46 County of Riverside CITY CLEPIK'S OFFICE I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above-entitled matter. I am the principal clerk of the printer of the DESERT SUN PUBLISHING COMPANY, a newspaper of general circulation, printed and published in the city of Palm Springs, County of Riverside, Proof of Publication of and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Riverside, State of California; under the date of March Mo.511 T 24, 1988. Case Number 191236; that the " notice, of which the annexed is a printed copy * k that !' lVFE that ubih ng N©?ICE 15 ttElel�t3 (set in type not smaller than nonpareil), has Will be held b-0004-the Palm Desert I*"-A'M mission to con ider a re vest k f4ai p W, AL- been published in each regular and entire ry PAftTNILR 1i1f;Xsu�itisH OMPVy fenm _. p g prove!of a tiagative tjectaratlon of Enviro ! Impact and an amendment to an rowed issue t�yei- of said newspaper and not in any opment AllraeMe1+t Ordinance N the maximuM poor area of a proposed r 11'catn- supplement thereof on the following dates, to merclal center from 167eOO square feet to oDO' square feet on Site Area Rio.S,a 10.8 acre pareF! 4n wit: the south "a of El 0aseo batavedrl San P rho Avenue and Larks Lane. A�827-261.002 SAID public,heerl Wlli be held oA Tue4day,,P. tember 6,1464,at P.m.M111 Cod It Chalmber Palm Desert Clfo ,nyDr , PalmDoet, alrnlo Which timeAU9USt 15th nd place all interested persons are Invited to attend and be heard.Written comments concern- ing ail items covered by this public hearing notice shall be accepted up to the date of the hearing- nformation concerning the'pro osed.proiect an- d/or negative declaration is avat�a We for review In the departmdnt of community devol:*Ce t/ ion- ning at the-Ay*address betN*i*h 1he hours of 8:00 a.m.and S, V .Monday thr Friday. If you chat en ro r,ed actieir#+n doiuMyou may - I certify (or declare) under penalty of perjury be Il h@a p or � rain ,rinou that the foregoing is true and correct. scribed in:flalatDr itt hci�ence delivered tc the,. _ 1tl+t -to, tPr city council)-a �thttis*' RAM *Secretary ; Pat Desert Planning ommission Dated at Palm Springs, California this 15th Published:'- ,ust 18, 19M4, day of AUGUST , 1994. SIGNATURE PROOF OF PUBLICATION PROOF OF PUBLICATION This space is for County Clerk's Filing Stamp (2015.5 C.C.P.) STATE OF CALIFORNIA County of Riverside I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above-entitled matter. I am the principal clerk of the printer of the DESERT SUN PUBLISHING COMPANY, a newspaper of general circulation, printed and published in the city of Palm Springs, County of Riverside, Prooif..of,Publication of and which newspaper has-'been adjudged�'a newspaper of general circulation by the Superior Court of the County of Riverside, State of California; under the date of March 24, 1988. Case Number 191236; that the Noio37 notice, of which the annexed is a printed copy ii�u►t pltoilr NAM St AHMANSON CCA1WAIIC1A4 (set in type not smaller than nonpareil), has CMLOPMBW AGRIRMtNT NOTICE is H15MEBY GIVEN that is ppublic hearing been published in each regular and entire will be held before the Palm Desert CI Cou , 1t t0 consider a t. est by MADISON R >r, W%1 issue of said newspaper and not in an I NEtZfive ISE GIMPANY.#or ap ro pact y Negative rati4f Envlrenmen t supplement thereof on the following dates, to and an amendment to an apppp�roved Development Agreement Ordinance No. 5sD and a Redevelop wit: ment Agency.Disposition,00"10pme"t and 1 le- mentat(on Agreement for a pr000Sed re ii merciai center on site Area No. 51 a 10.3 acre- parcei on the south aide of El Paseo between San APN 62 Avenue and Lgarkspur Lane. October 17th SAID tobe public 1994aatp7:00 p.m.will n the Cou Co uncil C ar7r; bar at the Palm Desert Civic Center,73-510 Fred- Waring Drive, Palm Desert, California, at which time and place all Interested persons are invited to- attend I ll Items cvr heard.by Written h s public hearing nnts o ipl; year 1994.. shag be accepted up to the date of thehearing all in the y " Information concerning the'pro pposed project ant- dlor negative declaration is avallable for review In: the department of community developmentl lance ping at the above address between the hours of B. I certify (or declare) under penalty of perjury a.m.and 5:00 P.M.Monday through Friday.If-yol Challenge the proposed actions in court, you My, that the foregoing is true and correct. be limitad to rasing oniY those Issues You e' someone etas raised at the hedrii d scribed In this notice,or in wG an rrespoh1 ncs delivered to the planning commission for cl - Dated at Palm Springs, California this 17th tubllscouncil) at, or prior to, "a pubi!t Mrering, Published: October 17, 1"Jl e day of OCTOBER , 1994. SIGNATURE PROOF OF PUBLICATION PROOF OF PUBLICATION This space is for County Clerk's Filing Stamp (2015.5 C.C.P.) STATE OF CALIFORNIA County of Riverside I am a citizen of the United States and a resident of the County aforesaid; i am over the age of eighteen years, and not a party to or Interested in the above-entitled matter. I am the principal clerk of the printer of the DESERT SUN PUBLISHING COMPANY, a newspaper of general circulation, printed and published in the city of Palm Springs, County of Riverside, Proof-of,Publication of....... ................. .. n adjudged'a newspaper of general circulation by the Superior Court of the County of Riverside, State of California; under the date of March wo o7 7 s` 24, 1988. Case Number 191236; that the I�xi coirrrN�leellAb..�_. RROJEC7? NAMit notice, of which the annexed is a printed copy O/tle1.OP M/NT AGREEMENT NOTICE IS HEREBY GIVEN that a ppublic hearing will be head before the Palm Desert C11 ' Y PA1i TO (set in type not smaller than nonpareil), has consider a vest MAaISON,RETY PART­ consider 1Sg OMPANY fdr oval of a been published in each regular and entire Negative Oration of Envir`enm=rl tmpect a and an amendment to an approved Development: Issue of said newspaper and not in an ' P P y Agreement Ordinance No, ps�l►and a Redevelop Mena A envy Dispositldfl,Devel tltitrld itnplev: supplement thereof on the following dates, to mentatPon AAgyreement far a pro recall coma. Marcia! center-on Otte Area No. S, a 10.8 acre wit: par'el on the south side of El Poseo between Son- Pabio Avenue and Larkspur Lane. APN 627-261-002 SAID public heart will be held on Thursday,. October 27, 1"4,at�00 p.m.in the Council Chant-_ bar at the Palm Desert Civic Center, 73.510 Fred- Waring Drive, Palm Desert, California,"at which October 1 7th time and place all interested persons are Invited to. attend and be heard.Written comments concern In all Items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proppased protect any d<or negative declaration is avaliable for review In_ all in the year 1994.•-• the department of community development/plan y _ ning at the above address between the hhours of 8:00 a.m.and 6:00 p.m.Monday through=Friday. If you= challengge the proposed actions im court you mall> be IimRad to raising only those Issues you or certify (or declare) under penalty of perjury someone else raised at the public hearin dad scribed In this notice or in written Gotrtisnc that the foregoing is true and correct. —delivered to the tsslan.(or eat council) at, of prior to, t e public haring, Published: October 17,,1994 , Dated at Palm Springs, California this 17th day of OCTOBER , 1994. SIGNATURE PROOF OF PUBLICATION City ®f Palm ®aaed 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)341-7098 PLANNING COMMISSION MEETING NOTICE OF ACTION Date: September 8, 1994 Madison Realty/Sunrise Company c/o Philip Smith 42-600 Cook Street Palm Desert, California 92260 Re: Ahmanson Commercial Development Agreement The Planning Commission of the City of Palm Desert has considered your request and taken the following action at its meeting of September 6, 1994 . PLANNING COMMISSION CONTINUED THE PUBLIC HEARING TO OCTOBER 4, 1994 BY MINUTE MOTION. CARRIED 3-0 (COMMISSIONER JONATHAN WAS ABSENT) . Any appeal of the above action may be made in writing to the Director of Community Development, City of Palm Desert, within fifteen ( 15) days of the date of the cision. o RAMON A. D IAZ SC ARY PALM DESERT PLANNI COMMISSION RAD/tm cc : Coachella Valley Water District Public Works Department Building & Safety Department Fire Marshal Recycled Paper